NAMIBIA: National Laws

Summary: General overview of Namibia's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law

Article 144 of the Constitution of Namibia provides that international agreements binding upon Namibia, including the Convention on the Rights of the Child, form part of the domestic legal system. The courts have used the provisions of the Convention on the Rights of the Child to interpret the rights provisions in the Constitution, but it is not clear whether the Convention would be applied in place of domestic legislation if the two were in direct conflict.

Constitution: Chapter 3 of the Constitution of Namibia includes a number of rights provisions that apply regardless of age, but a number of child specific provisions can be found throughout the Constitution:

• Article 4(1): includes a provision that allows for flexibility in the provision of nationality to children where Constitutional rules would otherwise leave children stateless

• Article 15(1): enshrines a right of children to a name, to acquire a nationality and, subject to the best interests of children, as far as possible to know and be cared for by their parents

• Article 15(2): entitles children to protection from economic exploitation and provides that they may not be employed in, or required to perform, work likely to be hazardous or to interfere with their education, be harmful to their health or physical, mental, spiritual, moral or social development. For the purposes of this provision, children are defined as persons under the age of sixteen.

• Article 15(3): provides that no child under the age of 14 may be employed to work in any factory or mine, save under circumstances regulated by an Act of Parliament.

• Article 15(4): defines any scheme whereby a minor children of an employee is compelled to work for the interest of the employer or an employee as forced labour.

• Article 15(5): provides that no law authorising preventative detention may permit children under the age of sixteen to be detained.

• Article 20(2): provides that primary education shall be free and compulsory and that the State must provide reasonable facilities to render this right effective for every resident.

• Article 20(3): provides that children are not permitted to leave school until they have completed their primary education or have attained the age of sixteen years, whichever occurs sooner. An Act of Parliament can set out grounds under which this principle can be set aside on the basis of health or other considerations pertaining to the public interest.

• Article 20(4): sets out the criteria to be met in order to establish private educational institutions

• Article 95(b): requires the State to adopt policies aimed at enacting legislation to ensure the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age and strength.

Legislation: there is no comprehensive Children's Act in Namibian law, rather legislation relevant to children can be found in a number of Acts. Legislation of particular relevance to children includes, but is by no means limited to:

• The Children's Status Act (Act No. 6 of 2006)

• The Combating of Domestic Violence Act (Act No. 4 of June 2003)

• The Combating of Rape Act (Act No. 8 of 2000)

• The Labour Act (Act No. 11 of 2007)

• The Criminal Procedure Act (Act No. 25 of 2004)

• The Maintenance Act (Act No. 9 of 2003)

• The Education Act (Act No. 16 of 2001)

• The Birth, Marriages and Death Registration Act 1963 (Act No. 81 of 1963)

• The Ombudsman Act (No. 7 of 1990)

• The National Youth Council Act (No. 3 of 2009)

• The National Youth Service Act (No. 6 of 2005)

Legal Research

The Namibian Constitution is available through the website of the Supreme Court (http://www.superiorcourts.org.na/supreme/nam_constitution.html) and the website of the Namibian Parliament maintains a database of domestic Acts (http://www.parliament.gov.na/acts/acts.php) and Bills (http://www.parliament.gov.na/bills/bills.php). The Official e-Law Portal of Namibia also provides access to a database of Namibian legislation (http://nam-elaws.com.na/PGContent.php?UID=602). The World Law Guide (http://www.lexadin.nl/wlg/legis/nofr/oeur/lxwenam.htm) and the International Labour Organisation website, NATLEX, (http://www.ilo.org/dyn/natlex/natlex_browse.country?p_lang=en&p_country=NAM) also both provide access to a selection of domestic legislation. In addition, the GlobaLex Initiative at New York University has published a guide to legal research in Namibia (http://www.nyulawglobal.org/Globalex/Namibia1.htm) and the World Legal Information Institute (http://www.worldlii.org/na/) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/namibia.php) provide access to a selection of legal and governmental resources. All resources are available in English.

Case Law

CRC Jurisprudence

The High Court of Namibia has cited the Convention on the rights of the child with regards to child custody (http://www.crin.org/Law/instrument.asp?InstID=1556).

Case Law Research

The Official e-Laws Portal of Namibia provides a searchable database of case law (http://nam-elaws.com.na/PGContent.php?UID=686) and the Southern African Legal Information Institute provides access to the case law of the Namibian Supreme Court (http://www.saflii.org/na/cases/NASC/), High Court (http://www.saflii.org/na/cases/NAHC/) and Labour Court (http://www.saflii.org/na/cases/NALC/). All resources are available in English.

Compliance with the CRC

In its Concluding Observations of 2012, the Committee on the Rights of the Child welcomed initiatives to review pre-independence laws, but expressed regret that the State had failed to adopt and implement a number of important legal reforms. In particular, the Committee noted that the Child Care and Protection Bill and the Child Justice Bill had been under discussion for more than a decade, but had yet to be adopted. The Committee also expressed concern that the existence of customary law alongside the formal legal system might lead to practices inconsistent with the Convention, in particular those relating the minimum age of marriage, divorce and inheritance. The Committee urged the State to expedite the revision of its laws on children's rights, to ensure that constitutional provisions and statutory law prevail over customary law, and to ensure that children have full access to the formal justice system. 

In depth analysis

A large number of more specific areas of Namibian law also emerged from the Committee's 2012 Observations as falling short of the standards set by the Convention. Perhaps the most basic was in relation to the definition of the child, which for the purposes of the Constitution's protections against child labour (Art. 15(2)), is defined as a person under the age of 16. The Committee urged the state to review and amend this part of the Constitution and to ensure that all legislation affords full protection to all children under the age of 18.

A theme that emerged throughout the Committee's Observations was that of a lack of laws on a number of children's rights issues. Noting the absence of the principle of the best interests of the child in most relevant legislation and policies the Committee urged the State to implement appropriate provisions in domestic legislation, including the draft Child Care and Protection Bill and Child Justice Bill, as well as ensuring that the principle is given due regard in judicial and administrative proceedings. The Committee also urged the State to address the absence of legislation on inter-country adoption; the absence of a comprehensive legal framework and a specific body to monitor adoption at the international and domestic level; and the absence of legislative provisions to govern the nationality of children in Namibia whose parents are unknown.

The Committee also made a number of recommendations in which it urged the State to enforce its laws on the protection of children, and to prosecute those who violate children's rights. Specifically, the Committee pressed the State to investigate complaints of ill-treatment and abuse of children in street situations by police and staff in police custody; to ensure that adequate criminal and civil sanctions are imposed on individuals, including traditional leaders, who encourage or are involved in sexual initiation practices; and to systematically initiate legal proceedings against those responsible for corporal punishment.

With regards to juvenile justice, the Committee expressed concern that the minimum age of criminal responsibility was “unacceptably low” (7 years), that children's courts were not operational in all regions, that there was an absence of special detention facilities for children and that children were incarcerated with adults in poor conditions. The corresponding recommendations urged the State to review and amend its legislation on juvenile justice, including by enacting the long delayed Child Justice Bill, to raise the minimum age of criminal responsibility and to establish detention facilities for children with conditions suited to their age and needs.

Current legal reform projects

The Child Care and Protection Bill and the Child Justice Bill had been under development for more than a decade, but had not been enacted at the time of writing.