Defining Equality: Namibia’s Supreme Court and the Rights of Persons with Disabilities

By Kevin Lee Pinkoski

Equality in Namibia and the Rights of Persons with Disabilities:

A young country – with a new constitution – needs an active judiciary that takes every opportunity to develop a more nuanced understanding of its constitutional principles. This is the context of Namibia, a country that, in 1990, won independence from South Africa after years of racial division implemented by apartheid, and, in the same year, adopted a new constitution. But many terms in this new constitution have yet to be comprehensively nuanced and defined through jurisprudence. As the case Alfred Mew Visser v Minister of Finance & 3 Others shows, Namibia’s judiciary continues to miss opportunities to describe both the nuances of equality as the term is present in the constitution and its relationship to the rights of persons with disability.

The nuance that is lacking from Namibian jurisprudence on equality is if the term is only limited to formal equality, where the law treats all individuals equally, or if it includes substantive equality, where the law recognizes individual differences in order to make everyone equal. Namibia’s constitution prioritizes equality, yet Namibia’s Supreme Court has failed to provide an accurate explanation of what is meant by the term in the constitution — if it is limited to just formal equality, or if it can be expanded to substantive equality. The judiciary must play an active role in addressing these ambiguities. Consequently, disabled individuals in Namibia are left without true equality.

Alfred Mew Visser v Minister of Finance & 3 Others:

The Alfred Mew Visser case is about the rights of persons with disabilities. Alfred Visser was in a severe car accident and, as a result of his injuries, he was blinded in both his eyes. Because of Namibia’s no fault insurance scheme, he was awarded damages according to The Motor Vehicles Accident FundThe Fund sets caps for damages, and Alfred Visser challenged these caps under the claim that they do not adequately provide the financial support necessary for him to live with a permanent disability. The Supreme Court did not find the case in his favour because of the financial implications of going beyond the caps established in The Fund.

Alfred Mew Visser characterizes a clear problem in the Namibian judiciary; the term equality in the Namibian constitution has not been accurately defined by Namibian jurisprudence. Yet the Supreme Court’s response inAlfred Mew Visser, ignorant of this problem, focuses only on the financial limitations of The Motor Vehicles Accident Fund. My criticism is that, regardless of the outcome of the case, the Supreme Court needs to actively seek out opportunities to elaborate and clarify Namibia’s constitutional principles. Because of this, the Supreme Court’s judgment in Alfred Mew Visser is a missed opportunity to provide a nuanced understanding of what is meant by equality – this is detrimental to Namibia’s most vulnerable populations.

Equality in the Namibian Constitution:

Strong memories of the heroes of the liberation struggle, such as Toivo ya Toivo, continue to inspire Namibians like Fazilla to fight for equality.

Reflective of years of apartheid – when inequality between race was implemented by law – Namibia’s new constitution prioritizes equality for all its citizens. The preamble to the constitution sets this mandate, affirming that “the inherent dignity and of the equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace.” Namibia, as a new country, founded itself on the principle of equality.

Namibia’s standard of equal rights for all is expanded upon in Art. 8: Human Dignity and Art. 10: Equality and Freedom from Discrimination of the Constitution. Art.8(1) states: “The dignity of all persons shall be inviolable”, and Art. 8(2)(a) elaborates: “In any judicial proceedings… before any organ of the State… respect for human dignity shall be guaranteed.” Art.10(1) reads: “All persons shall be equal before the law,” and Art.10(2) continues: “No persons may be discriminated against on grounds of sex, race, colour, ethnic origin, religion, creed or social or social status.”

The constitution and current government policy indicate an ambiguity between formal and substantive equality in Namibia. While Art. 10(1) establishes the terms of formal equality before the law, Art. 10(2) creates the potential to use the law to make all individuals equal through substantive equality.  Art 10(2) indicates the potential for substantive equality as it would be discrimination not to make individuals equal who suffer under the prohibited grounds for discrimination in Art 10(2). The emphasis on equality in both the preamble of the constitution and in Art. 8 show Namibia’s prioritization of equality for anyone within Namibia’s borders. Furthermore, Namibia has embarked on clear projects to create substantive equality for marginalized populations, such as economic empowerment initiatives and gender equality programs. There is a clear ambiguity in what is meant by equality that must be addressed by Namibia’s Supreme Court.

Neither Art. 8 nor Art. 10 provide a nuanced understanding of what is meant by equality. Because of this, Namibia’s lower courts have been limited to an understanding of equality that only evaluates the formal equality of all individuals before the law, not the substantive equality necessary to make all individuals equal. Furthermore, as Alfred Mew Visser shows, the Supreme Court has failed to take any opportunity to define any nuances to what is meant by equality as it is presented in the Namibian constitution. Because of this, Namibia has yet to create an environment of true equality for persons with disabilities.

Disability in Namibia and Alfred Mew Visser:

Although empty on the weekend, the Katatura Disability Plaza houses numerous organizations that promote equality for people with disabilities.

Namibian law defines disability as “a physical, mental or sensory impairment that alone, or in combination with social or environmental barriers, affects the ability of the person concerned to take part in education, vocational, or recreational activities.” This definition is elaborated upon to include the “loss or limitation of opportunities to take part in the normal life of the community on equal level with others due to physical or social barriers.”

The Namibian constitution does not list disability as a prohibited ground for discrimination in Art. 10(2). Thus, for disability to be adequately recognized or discussed in terms of equality, the Namibian judiciary must establish that disability is included under the prohibited grounds for discrimination in Art. 10(2).

Disability has a clear consequence on an individual’s ability to participate in society, it has a detrimental effect on the following grounds prohibited by Art. 10(2) of the constitution: social status, economic opportunity, and personal prosperity. The statistics are clear: 17.7% of urban disable persons do not attend school, 82.3% of rural disabled persons do not attend school, 42.5% of disabled persons work in agriculture and fishers, with 14.6% in elementary occupations. 70% of disabled persons live in homes without a mortgage. The reality is explicit – being disabled in Namibia is a limit on the potential of an individual to achieve success and prosperity.

In the example of Alfred Mew Visser, Alfred Visser has suffered a permanent disability because of the accident: he is blind in both eyes; he has a physical impairment that will impede his potential to participate in everyday activities and in work opportunities; he will need to learn a new system of reading. He is likely to be to be limited, as Art 10(2) of the constitution explains, to a “social status” because of his disability.

Art. 8 and Art. 10 of the Namibian constitution ensure a conducive environment to the full and equal participation for all in society, including those with disabilities. But, as was previously alluded to, because neither Art. 8 nor Art. 10 provide a comprehensive definition of what is implied by equality, the Supreme Court is required to give such an interpretation. The Alfred Mew Visser case is a clear example of a missed opportunity to give a more nuanced explanation of what is meant by equality, a missed opportunity that will be detrimental to disabled people – one of Namibia’s most vulnerable populations.

Formal Equality – Equality as applied by the Supreme Court:

Namibia’s clear wealth disparity, apparent in the village of Hoachana, is continually being addressed in the pursuit of equality.

Namibian jurisprudence has yet to provide a nuanced understanding of what is meant by equality in the Namibian constitution. The problem is that, because of the limited wording of the Namibian constitution, there is no need for courts to expand beyond an understanding of equality that is restricted to formal equality. Formal equality is established only by equality before the law. It applies blind rules to every situation, no matter what social differences may be involved. If the Namibian constitution ensures only formal equality, the Namibian Supreme Court should define that distinction. While it is possible to develop the language of formal equality in Alfred Mew Visser, it is important to recognize that the case turns on the financial limitations of The Motor Vehicle Accidents Fund, and not the issue of equality.

In Alfred Mew Visser, the court employs a view of formal equality before the law, as all claimants are held to the same limits of compensation, regardless of either their individual characteristics or the consequences of an accident. Alfred Visser’s disability can only be taken into account provided it falls under the limits of the caps established in The Motor Vehicle Accidents Fund, and it cannot be adjusted to take into account the particular needs of certain claims. The caps employ the same legal equality to all — the same formal equality before the law — and thus the court can resolve that “No distinction is made between claimants at all” since “all claimants are in the same position when it comes to the capping of their claims and are thus equal before the law.” No differentiation is made between individuals and their needs. If this is what is meant by equality in the Namibian constitution, the Supreme Court should define equality in this way in its decision.

Formal equality could, however, provide the means to address the necessary compensation required to ensure equality for disabled individuals. Since, to establish formal equality, the court adheres to “equality before the law,” it is the actual law itself that would have to change. The Motor Vehicle Accidents Fund would have to be amended to provide for a recalculation of damages for disability, for injuries that cannot be recovered from and that requires an individual to live their life in a different way. In this way, the court could still employ formal equality before the law, but the law itself would have to be expanded to provide for the necessary compensation to an individual who has been affected to a new “social status” (as Art. 10(2) of the constitution establishes) as a result of an accident. The Namibian constitution could imply formal equality in this way, but the distinction would have to be made by the Supreme Court.

The Potential for Substantive Equality in Namibia:

The Katatura Hospital is one of many public hospitals that provides medical services to Namibians.

In Alfred Mew Visser, substantive equality would imply that, because Visser has been placed in a different social status as a result of the disability incurred in the accident, the court could employ a definition of equality that allows for increased compensation. While the court establishes that The Motor Vehicle Fund ensures that “equally positioned persons are treated equally”, it fails to consider that some individuals will require more support in order to be treated equally. The reality is, as substantive equality reminds us, that the results of an accident do not leave all individuals “equal”, and that some, especially those with long term disabilities, will require more compensation. If the court had chosen to establish substantive equality as a part of the Constitution’s definition of equality, the court would allow for the law to be adapted to Alfred Visser’s specific case.

Furthermore, the court would establish the necessary precedent to employ substantive equality when necessary to ensure that the law can be adapted to provide what is needed for any individual to achieve equality. This is the missed opportunity of the Supreme Court, they failed to recognize the reality that equality before the law does not ensure that the law has equal effects on all individuals. Consequently, in order for the law to allow that all individuals can achieve equality as a result of the law, a substantive understanding of equality should be employed. Here, the Supreme Court has failed to provide for a more nuanced, and more just, understanding of equality that takes into account an individual’s unique needs. Alfred Mew Visser is thus a missed opportunity to define equality.

Conclusion:

Namibians, especially Namibia’s most vulnerable population, must again wait for the Supreme Court to develop a nuanced understanding of equality. Namibians are left with ambiguity as to if equality goes beyond formal equality to address substantive equality, thus allowing for the prohibitions on discrimination in Art. 10(2) to be extended to unlisted ground. It is, as Art. 10(1) reminds us, that “all persons shall be equal before the law” – so why stop short of protecting Namibia’s vulnerable populations?

The Supreme Court should be capable of providing the necessary jurisprudence to clarify and develop the constitution. The Supreme Court cannot be limited by state resources or policy in its decisions, it must be capable of balancing these limitations with the necessity of equality. The nuances in the term equality have yet to be defined by Namibia’s Supreme Court, and the Court continues to miss opportunities to add the necessary nuances. Defining these nuances is, after all, the role of the judiciary.

 

Ag Shame! We Can Only Do Law Reform

By Kevin Lee Pinkoski

Law Reform and the Luxury of Legal Research:

“Ag shame!” Exclaimed one of the legal researchers who works with me at Namibia’s Law Reform and Development Commission (the LRDC). “ Wouldn’t it be nice to do legal research that wasn’t just about fixing the laws in a country.” Ag shame, the universal Namibian expression that serves as a useful response to absolutely anything, was this time employed in a negative sense. My co-worker was disappointed by the realization that necessity was ruling out luxury in legal research.

Downtown Windhoek shows how luxury may be sought after, but the colonial heritage has limited many to only necessity.

My co-worker was responding to a presentation by academics from the University of Cardiff during the first week of my internship at the LRDC. The presentation focused on what political biases may influence the decisions of members of the U.K.’s Supreme Court. When asked about the intention of the research, the academics explained that it was to “make it clear who our judges were.” It was clearly beneficial research; to know the biases of the judiciary could help both the public better scrutinize the judges and perhaps even force judges to better scrutinize themselves. But in the eyes of my co-worker, this research was a luxury to pursue. The thought that diversity in legal research is a luxury – that some countries and contexts are limited by necessity to only do legal research that evaluates whether or not the law achieves its intended outcome – is the most preponderant lesson I have learned while interning at Namibia’s LRDC.

The Necessity for Law Reform in Namibia:

Namibia is a young country. It was granted independence in 1990 from South Africa after a racially divided struggle, the consequence of years of apartheid that segregated black and coloured Namibians from the white ruling elite. In the year Namibia gained independence, the first democratic elections were held, a representative constituent assembly was elected, and a new constitution was implemented. The new constitution boldly stated the mandate for the new Namibian republic: “equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace… regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status.” According to its new constitution, Namibia would never again treat its citizens unequally.

Independence, for Namibians, marked a new chance for a prosperous future that would benefit everyone – a stark contrast from the years of colonial administration.

Namibia’s colonial relationship with South Africa, the United Kingdom, and Germany have had a clear impact on the country’s legal framework. Colonized first by Germany at the end of the 19th Century, Namibia, then known as South West Africa, would come under the control of the United Kingdom during the First World War. After the war, a League of Nations mandate would then grant administration of South West Africa to South Africa. South African administration would continue, even after the United Nations and the International Court of Justice declared the governance illegal according to international law, until independence was won in 1990. The consequence of three separate colonial administrations was three distinct layers of law, each applied one over the top of the other – each layer retaining its applicability unless otherwise stated. Upon independence, Namibia chose to retain the validity of all previous laws unless the laws were otherwise repealed, modified, or replaced.

The colonial legacy of Namibia exposes the need for law reform. It is here where the luxury of doing diverse legal research is lost because of the urgent need for law reform. Not only do many of Namibia’s laws have a colonial legacy, and thus fail to treat all Namibians equally, but Namibia has transitioned since its independence, first attempting to consolidate the nation’s ethnic diversity through the law, then moving towards an attempt to modernize its laws to realize economic success for individuals that were otherwise limited during the years of apartheid. Law reform plays a key role in determining how laws can and should be modernized to promote the equality, prosperity, and peace ensured by the Namibian Constitution.

The Law Reform and Development Commission:

It is in this process of repeal, modification, and replacement that the Namibian LRDC plays its role; it is mandated to repeal obsolete laws, consolidate codification of the law, harmonize customary and statute law, recommend more effective laws, and enact laws to promote human rights. The LRDC exists as an office separate from any other part of the Namibian Government. This independence gives the office the ability to evaluate the potential impact and usefulness of any law from an apolitical perspective.

To achieve its mandate, the LRDC relies on its most useful tool – public consultations. The LRDC’s political independence gives it the ability to reach out to whoever it chooses. But this process hasn’t become limited to specific stakeholders or powerful groups; the LRDC fosters relationships with as much of Namibia’s population and as many distinct groups as it can, to determine the true impact and perception of the law.

Capana, Namibia’s most popular street food, involves a “farm to mouth” process, that connects farmers, meat buyers, butchers, and cooks, all to cook meat, in markets that are open from 8am to 10pm.

In many ways, Namibia is ideal for this type of an office. The country is only 2.3 million people, its small population means the government is interconnected. A large bureaucracy makes the government accessible. Political organizations are populous. People are proud of their heritage, both the places they come from and their own personal history, and as a result, communities are engaged, concerned for their wellbeing, and accountable for their achievements. Still, there are groups that are skeptical of the current political process, groups that struggle to see how their interests are being represented. It is, therefore, necessary to have government organizations, such as the LRDC, that accommodates all Namibians, regardless of their current engagement in the political process.

The LRDC seeks out and fosters relationships with stakeholders implicated by potential laws. The typical political process is reversed; instead of groups pursuing politicians and advocating for specific decisions, the LRDC reaches out to the variety of stakeholders that are needed to determine the effectiveness of the law. The LRDC develops these relationships, with close ties to the University of Namibia, traditional communities, political assemblies, municipal leaders, law reform commissions throughout the world, NGOs in Namibia, and, above all, Namibians themselves.

The LRDC’s Law Reform Process:

Headed by the dynamic Ms. Yvonne Dausab, who has had a career in private practice, in academia, and in government, the LRDC operates in consultation with the Office of the President. Appointed in 2015 directly by the President of Namibia, Dr. Hage Geingob, Ms. Dausab cooperates with the Commissioners, a select group of Namibia’s top legal professionals who, while employed elsewhere in Namibia, manage projects and provide advisory guidance. Projects are requested directly by the Office of the President, the Attorney General, and the Ombudsman. On each project, legal researchers are assigned from within the office to coordinate research and consultations. The final output of each project is an evaluation of a law’s effectiveness, its implications in Namibia, and any possible areas that could be perfected.

The Commission works like a legal consultancy, but because it is Namibian in its staffing and location, it provides a truly Namibian perspective on the law. This is necessary, especially in Africa, where legal recommendations that are deemed to be effective in another part of the world are often prescribed to African countries. While some of the most effective law firms in the world may be able to make recommendations to Namibia about the law should be, few of these recommendations can access how the law should be for Namibia. But by being in Namibia, staffed by Namibians, and connected to Namibia, the LRDC can consult within Namibia and recommend how the laws should be for Namibia.

The success of each project depends on the ability to find and include the necessary interested and implicated parties in Namibia. The New Equitable Economic Empowerment Framework project relied on country wide consultations with Namibia’s poorest citizens, marginalized business owners, and investors from all backgrounds. The Marriage Reform project relied on consultations with traditional communities whose marriage practices were the most divergent from civil marriages, as well as groups that provided support for any detrimental consequences from traditional marriages. The recommendations on Disability Law Reform synthesized the perspectives of Namibian’s with disabilities, organizations that support persons with disabilities, and institutions that struggle to assist persons with disabilities. Around the world, all of these laws exist in a functional way, but only the LRDC is able to determine how they can exist in a way that will work for Namibia and benefit Namibians.

My own work at the LRDC was directly involved in this process. Working with Ms. Dausab, the focus on my work was to prepare for stakeholder consultations, provide initial readings of proposed laws, conduct comparative legal research with other jurisdictions, and consolidate current Namibian court decisions. To support Ms. Dausab’s consultative network, my work included speech writing, analysis of stakeholder recommendations give to the office, and writing both articles and recommendations on behalf of the office. As an editor, I was tasked with editing The Law Reform and Development Commission At 25: A Quarter Century of Social Carpentry, a book on the potential of law reform in Namibia, along with numerous reports and publications. My work was diverse, reflective of the Law Reform Commission’s mandate to address all laws in Namibia.

The Chairperson of the LRDC, Ms. Dausab, addresses the Junior National Council on Child Marriages in Namibia and possible legal solutions, a catalyst moment in law reform.

Because of the Law Reform Commission’s proximity to both stakeholders and groups directly implicated by legal decisions, its influence is direct and consequential. The legislative response to child marriages in Namibia is a clear example. Ms. Dausab was asked to give a speech to the Junior National Council on the consequences of child marriages and what legal solution could be used to ending child marriages in Namibia. While only 7% of children are married before the age of 18, such marriages occur under an exemption within the law that allows children to marry with both parental consent and the approval of an officer of the Ministry of Home Affairs. After delivering the speech to the Youth Council, the Council passed a recommendation to the National Council to remove the exemption provisions. Even though the National Council was on recess, the Ministry of Gender Equality and Children announced in the following week that it would conduct both statistical research to determine where child marriages were occurring, consultations with implicated communities, and research into legal and institutional reform needed to end child marriage. As this example shows, the desire for law reform is evident across Namibia and Namibians are willing to act to ensure true equality.

Necessity over Luxury:

Legal research can be both a social necessity and an academic luxury. Since I started my studies in law, I’ve been exposed to legal research that is as diverse and complex as any academic discipline. There is research that, similar to the LRDC’s work, intends to influence the writing of the law and inform judicial decisions. But the scope of legal research is not limited to only reform. It expands to guidelines on how to support the convergence between law and other academic disciplines, its analyzes the pedagogy of teaching, and it criticizes how the discipline itself exists. This variety is a sign of a healthy academic discipline. But it is important to remember that this diversity and vitality is a luxury – one that can be afforded because of the functionality and success of the Canadian legal system.

In Namibia, the luxury of diverse legal research will only begin when the law itself has developed to a point where it exudes confidence in its own potential. Until then, the brightest legal minds in Namibia are nobly limited to the mission of law reform. Ag shame!

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.