Namibia

The Combating of Immoral Practices Act aims to prevent and reduce prostitution and the existence of brothels. The Act imposes a criminal penalty for keeping a brothel of imprisonment for a period not exceeding three years or imprisonment and a fine. The Act punishes procuring or attempting to procure any female to have unlawful carnal intercourse with imprisonment for a period not exceeding five years. The Act also imposes criminal sentences for offenses related to prostitution and various immoral acts, such as the owner or occupier of a property permitting such acts, living on earnings of prostitution, or enticing someone to commit an immoral act.

The Communal Land Reform Act 2002 aims to regulate the allocation of customary land rights in communal lands and to establish Communal Land Boards. Communal land that previously belonged to indigenous communities is now vested in the state, which then distributes and allocates the land among the rural communities. This Act takes precedence over customary law and is much more favorable to women’s rights. Under the Act, four women must be appointed to the Communal Land Boards. Furthermore, the Act provides that a customary land right that was allocated to a particular holder of such right shall upon the death of such holder be re-allocated to the surviving spouse. This provides protection to a surviving wife who may now remain on the communal land where previously she would lose the rights to such land upon the death of her husband.

This Act states that where a co-operative has more than five female members, or if more than one-third of its members are women (whichever is the lesser) and no woman has been elected as a member of its board, the board must appoint a woman as a board member within its first meeting to increase the representation of women in management positions. A similar provision is provided for sub-committees of boards.

The Maintenance Act (the “Act”) imposes equal rights and burdens in relation to the payment of child support (and enforcement of child support orders) on both parents and abolishes customary laws to the contrary. The Act also states that husbands and wives are equally responsible for each other’s maintenance.

The Married Persons Equality Act (the “Act”) abolishes the marital power of the husband over his wife and her property and amends community property laws. It further provides women with the power to register immovable property in their own name, gives them legal capacity to litigate and contract, and allows them to act as directors of companies. The Act also establishes that the minimum age for marriage is 18, thereby prohibiting child marriages.

The Combating of Rape Act (the “Act”) seeks to prevent rape and provides minimum imprisonment sentences for rape. It also abolishes the previous law, which presumed that a boy under the age of 14 was incapable of rape and sexual intercourse. This Act also regulates the granting of bail to perpetrators to further protect the rights of the victim, and provides protection to victims of rape and sexual abuse. Finally, it abolishes the customary rule, common among rural areas, that marriage is a justification for, or a defense to, rape.

The respondent was charged with two counts of sexual harassment of female coworkers and with the verbal abuse of another female coworker. His employer (the “company”) found that he had violated the company’s policies and fired him. The respondent brought a claim for wrongful termination to the Office of the Labour Commissioner, and the dispute was referred to arbitration. The arbitrator found in favor of the respondent and ordered the company to reinstate him and pay him N$102,000 in lost wages. The company appealed the decision to the courts. The judge overturned the arbitrator’s decision, finding that he overlooked numerous relevant facts in making his conclusions, which “no reasonable court or tribunal court have reached.” The court held that the company acted appropriately in terminating the respondent’s employment because sexual harassment and discrimination in the workplace are serious offenses that create obstacles to equality in employment.

The accused conceived a child after incestuous sexual intercourse with her brother. After the child was born, the mother tied a scarf around its neck and buried it alive. At trial, she claimed that the child was strangled by its own umbilical cord and was already dead when she buried it. However, medical and forensic evidence showed that the child died from strangulation and suffocation due to the mother’s actions. She was convicted of murder.

The appellant was convicted of rape under the Combating of Rape, Act 8 of 2000 (the “Act”) in the Regional Court for inserting his finger into the vagina of his friend’s eight-year-old daughter (the “complainant”). This insertion caused bruising to the complainant’s vagina that lasted longer than 72 hours. The complainant’s hymen, however, remained intact. The appellant was sentenced to 15 years in prison, of which five were conditionally suspended. On appeal, the appellant argued that he had not committed rape under the Act because he had not penetrated the complainant’s “vagina” as that term is defined under the Act, but rather touched the areas around her vagina. Accordingly, he argued that, at most, he had committed indecent assault, and therefore his sentence should be reduced. The appellate court denied the appeal and upheld the original sentence, finding that the labia minora, labia majora and the para-urethral fort all form part of the complainant’s genital organs and therefore satisfy the definition of “vagina” within the Act.

The accused was convicted of pre-meditated murder and sentenced to life imprisonment after stabbing his girlfriend (“the victim”) 27 times and locking her in a room until she bled to death. Prior to murdering the victim, the accused sent her a text message describing how he would kill her. At trial, the court determined the crime was aggravated by the fact that the accused had a direct intention of murdering his girlfriend and did so in a domestic setting. In imposing a sentence, the court took into account retribution, prevention of crime, deterrence and reformation. The court further found that the accused did not care about the victim’s right to life, but rather his own wellbeing, that he “played victim,” and that he showed no remorse. The judge stated that it “is high time that men in relationships with women should understand that once a woman tells them that they are no longer interested in continuing with the relationship, she means just that and her views and feelings should be understood and respected.”

The accused stabbed and murdered a pregnant minor girl with whom he was in a relationship when he was approximately 18 and she was 15 years old. Their relationship was one filled with domestic abuse and violence. He was convicted of murder and assault with intent to do grievous bodily harm. He was also convicted of assault for unlawfully and intentionally threatening to kill the deceased’s grandmother, thereby causing her to believe that the accused intended, and had the means, to carry out his threat.

The accused was convicted of culpable homicide for kicking his girlfriend to death, despite his claims that her death was caused by falling on a rock. In sentencing the accused to 10 years imprisonment, the court noted that violence against women is a serious problem in Namibia and that this should be taken into account in sentencing decisions as an aggravating factor.

The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”

The appellant, E.S., was a 38-year-old mother of three. She was practicing Jehovah’s Witness who consistently maintained that blood transfusions were against her religion. She told her obstetrician at her last pre-delivery appointment that she would refuse a blood transfusion if complications arose during delivery. After that appointment, E.S. gave her husband, also a Jehovah’s Witness, Durable Power of Attorney for Health Care. Nonetheless, her brother, A.C., filed an ex parte application to serve as her “curator to the person,” for the purpose of authorizing medical procedures on E.S., including blood transfusions after she suffered complications including a hysterectomy after giving birth. In support of his application, E.S.’s brother argued that, as a parent, E.S.’s individual autonomy had to be weighed against the interests of her family. He also offered testimony from her doctor, who explained that her blood and oxygen levels were too low to support full brain function. The trial court granted the application. The Supreme Court addressed three issues: whether the matter was moot after E.S.’s medical recovery, whether the lower court erred in granting A.C.’s application to be appointed his sister’s curator and have blood transfusions administered, and whether young children’s right to be raised by their parents supersedes the right of an individual to refuse a blood transfusion in life-threatening circumstances. The Supreme Court reversed the lower court, finding that “written advanced directives which are specific, not compromised by undue influence, and signed at a time when the patient has decisional capacity construe clear evidence of a patient’s intentions regarding their medical treatment” (¶56) and “the right to choose what can and cannot be done to one’s body, whether one is a parent or not, is an inalienable right” (¶ 71). The court made clear that a woman’s status as a mother does not restrict her right to liberty and privacy, especially where decisions of medical treatment are involved.

The defendant, an 18-year-old uncle of the complainant, was criminally charged for housebreaking with intent to rape and raping his 12-year-old niece. The complainant alleged that the defendant, on three separate occasions, came to the complainant’s home and raped her. The complainant’s mother found out after take the complainant to a clinic, which confirmed that she was pregnant, and confronting the defendant through the headman, as tradition dictates. According to the defendant, the complainant invited him to her home and agreed to have sex with him for money, specifically N$6. Given the conflicting testimony, the High Court of Namibia (“High Court”) found that the prosecution failed to prove the housebreaking with the intent to rape and rape charges beyond a reasonable doubt. In explaining its reasonable doubt, the Court cited the facts that complainant did not mention until her cross-examination that her uncle in fact gave her money on the day of the first rape, that she did not wake her seven-year-old brother or otherwise raise an “alarm” when her uncle arrived at her hut at night, and that she continued to withhold information from her mother “after her mother created a secure environment and the accused failed to execute his threat” to beat the complainant if she told anyone. Still, the Court did not believe the defendant’s testimony that his niece was a “great temptress.” Instead of homebreaking with intent to rape and rape as charged by the State, the High Court convicted the defendant under section 14, sexual offences with youths, of the Immoral Practices Act, 21 of 1980, which carries a maximum penalty of 10 years imprisonment and/or a fine not exceeding N$40,000. The Court found that the State proved the three elements of that offense: the defendant (1) committed a sexual act with a child under the age of 16 (2) when he was more than three years older than her and (3) not married to her. Although the defendant claimed that he did not know the complainant’s age, the High Court held that, in order to avoid conviction, the defendant had the burden of proving that the complainant deceived him regarding her age. The defendant failed to provide such proof.

In this case, the court overturned a “strikingly short” two-year sentence imposed on the defendant, who was convicted of attempting to kill his ex-girlfriend by stabbing her three times, including once near her eye, with a knife while she was holding her 2-year-old child. Despite the severity of the crime and finding that the defendant exhibited no remorse for his actions, the presiding magistrate only imposed a two-year jail sentence, citing the defendant’s personal circumstances as the sole breadwinner and caretaker for his three children and his ill grandmother. Although trial courts have discretion to determine punishment, the High Court refused to confirm the sentence and would only confirm the conviction, citing the three principles of sentencing: the personal circumstances of the accused, the nature of the crime, and the interests of society. The Court directed the Registrar to provide a copy of this decision to the Prosecutor-General, explaining that while taking the defendant’s circumstances into account is proper, the two-year sentence was unjust because of the severity of the crime and the prevalence of violence against women and children.

The appellant was convicted of raping his minor daughter and sentenced to 18 years and three years imprisonment, for rape and incest respectively, to run concurrently. He appealed his conviction, claiming that his minor daughter was the only witness to the alleged crime, that the trial judge improperly assumed the complainant was under 18 years old, that the prosecution did not meet its burden of proof, that his rights to legal representation were not explained, and that the sentences were unreasonable. The High Court of Namibia (“High Court”) determined that the child’s testimony was sufficient to sustain the conviction pursuant to Section 208 of Act 51 of 1977, which allows for conviction based on “the single evidence of any competent witness.” The High Court held that “although the complainant is a single witness to the actual rape, the fact that she immediately reported that to her sister and her niece corroborates her evidence,” and that the medical report, which was the result of a doctor’s examination conducted on the night of the rape after the complainant took a bath, corroborated her account of being raped. However, the High Court allowed the appeal on the charge of incest. The High Court cited the “single intent” test, which requires that two criminal acts be considered as one transaction if the evidence for one of the acts necessarily involves proof of another criminal act. The Court stated that the defendant had a single intent – to rape his daughter – so he should only be convicted of one crime (rape) rather than two.

Abraham Alfeus was convicted of murder with direct intent after admitting to shooting his intimate partner twice with a shotgun. The presiding judge, Naomi Shivute, read the ruling citing provisions of the Domestic Violence Act, Act 4 of 2003 and sentenced Alfeus to 30 years in prison. In the ruling Shivute stressed a need for stiffer sentences in response to extremely high levels of domestic violence against women and children in Namibia; including that it was a matter of protecting the constitutional right for human dignity, the rights of the victim, and in the interest of society generally. The judge’s ruling was meant to deter future domestic violence offenders and is an important precedent in Namibia where domestic violence runs rampant but is rarely prosecuted.