Black Economic Empowerment

By Bianca Braganza

Forging a future for Namibia, where ownership reflects the demographic of the country.

Like many days, I am the last to find out not only what I am to do for the day, but more pressingly, where I am to do it. It’s one of my favourite parts of the job- the excitement and unpredictability each day will bring.

We had barely arrived at the Commission’s office, when we received frantic calls that I was to go immediately to the State House, to accompany the Chairperson and the lawyers working on the National Equitable Economic Empowerment Framework (NEEEF). Scattered, I grabbed all the files I could, put on my nice spare shoes I keep at the office and ran out. As we raced through congested streets, I ran over the key points, strengths and weaknesses of the national economic strategy that I had amassed during my research and writing thus far.

Yet I couldn’t help but draw a blank when the massive golden gates of the President’s headquarters opened… the beauty and magnificence of the expansive white building, the golden Oryx, bright green foliage and marble encasing the main State House itself was simply breath taking.

But back to business (literally). I have spent much of my internship researching and writing reports and strategic plans on the core theoretical structure and implementation of financial instruments, for the equitable economic framework in Namibia. This required conducting cross-jurisdictional analyses predominantly with South Africa, but also with Malaysian and Canadian economic strategies that sought to incorporate and address racial disparities in accessibility and ownership within domestic markets.

The principle at the core of Namibia’s NEEEF policy is black economic empowerment. Inspiration was drawn from the Broad-based Black Economic Empowerment (BEE), which is a form of affirmative action crafted by the South African government, to address and change the economic landscape of racial inequalities of Apartheid, and increase economic participation of Black people in the South African economy. Interestingly, “black” as legally defined by the South African legislation encompasses African, Coloured, and Indian persons who are citizens of the country. Turning to the Namibian context, the purpose of legislation, reports and strategies based on NEEEF is to forge a future for Namibia where ownership reflects the demographic of the country. Much of this includes learning from the South African implementation of BEE and why the country struggled in practice to achieve the outcome of racial economic transformation that they originally had envisioned.

Namibia is only 29 years old, gaining independence from South Africa in 1990. The constitution of Namibia was created not by an act of Parliament, but rather as a negotiated settlement- a peace treaty, essentially- to secure independence. In effect, it solidified the ways in which the country’s economic landscape would be shaped and the way it would remain present day. Importantly, property as it was during Apartheid remained unaltered. Furthermore, constitutional provisions (for example, property under Article 16(1)) were created during this peace negotiation that protected property owners as they stood under Apartheid.

“Writing the Constitution” – Picture taken during my visit to the Independence Museum of Namibia.

If you grocery shop, or buy commodities, you will see that the previously disadvantaged majority (hereafter PDM; as defined under NEEEF means “victims of Apartheid policies”) occupies the lower level positions: sales representatives, cleaners, and public facing staff. However, ownership and controllership of those very firms, the upper management levels, are mostly held by the previously advantaged minority (PAM) Namibian population. In Namibia, there are a few owners of larger enterprises that own a monopoly on the major chains in Namibia- Pick and Pay (groceries), Pupkewitz (cars) and Shoprite (merchandise) for example.

The main challenge now remains, 29 years after independence, how do we shift the economic landscape to be more reflective of the actual demographic composition of the people of Namibia? Perhaps more importantly, how do we have more PDMs owning and controlling the economy and do so legally, in accordance with the constitution as it currently stands, unamended since Independence.

The basis upon which NEEEF operates is within government procurement. Corporations that do business with the government that meet certain compliance standards and statistical thresholds within employment and ownership of previously disadvantaged majority persons, are favoured. There are five pillars under which enterprises will be evaluated for procurement with government: Ownership, Management Control and Employment Equity, Human Resources and Skills Development, Entrepreneurship Development and Community Investment. A scoring system is enacted whereby, for example under the Ownership Pillar, “a business will score a minimum of 10 points if it is 25% owned by previously disadvantaged Namibians. For every additional 7.5% owned by previously disadvantaged Namibians, a business will score 1 additional point up to a maximum of 100% giving a total of 20 points“. Long term, the goal is for PDMs to not only own shares in companies, but to own enterprises themselves.

Much of a Nation’s independence is not simply political, but economic emancipation from external international access and controllership of the economy. In the Namibian context, if you drink water, eat chocolate or even moisturize with lotion, turn the product and you will invariably see “Product of South Africa”.  Despite Apartheid being over, South Africa dominates the Namibian economy through the reliance on their exports for goods in the country. In light of this, NEEEF also holds the potential to reduce import reliance and create a foundation for domestically producing commodities here in Namibia, and even long term to create an export economy for the country.

The NEEEF is a revolutionary attempt to achieve economic prosperity for the country by economically empowering and providing tools and financial instruments to those persons that were socially, educationally, and economically disadvantaged as a result of Apartheid. It provides the basis for a new vision of the country, based on social economic transformation to enhance equity, accessibility and ownership of the previously disadvantaged majority population.

After a most exciting day discussing economic empowerment in the country.

Day 2 of economic empowerment strategizing, back at the LRDC Office.

Proud Namibia

By Bianca Braganza

One of the most rewarding aspects of my time with the Law Reform and Development Commission (LRDC) has been the civic outreach and education we have conducted. The Chairperson, as part of the mandate of the Commission, provides legal education to the public and community organizations on various subjects upon request. This summer has been filled with presentations crafted specifically for the legal rights of the LGBTQIA+ community in Windhoek, with a strong vision for the future of a Proud Namibia.

Wings to Transcend Namibia

Pictured with the board of Wings to Transcend Namibia: Left is Jholerina, the founder of the NGO, myself, Princess, Programs Officer, and right, the Chairperson of the LRDC, Ms. Dausab. Not pictured is Teddy, who is the Advocacy and Communications Officer.

In late May, the Board from the NGO Wings to Transcend Namibia, came to visit the Commission to request civic education on the status of the legal rights of transgender persons in the country. Here, Princess tells her story of coming out to her family and the journey to acceptance she has struggled to achieve within her family, community and country at large. What I have appreciated the most about our civic education and legal engagements is the way in which the Chairperson pushes for narratives, and for engaging our personal stories with the legal activism and endeavours we pursue. Ms. Dausab began the meeting not with agenda-setting and running through legal provisions and the report we prepared, but rather by inviting the Board to tell us about themselves, their journey, and the current experiences on the ground of persons who identify as transgender in Namibia.

Community Civic Education: Trans Rights

This led to the presentation we conducted earlier this month to the community at large on the legal rights of persons who identify as transgender in the country. Upon request from the community themselves, we addressed human and constitutional rights of transgender persons with regards to: interactions with the police (and the levels of brutality and discrimination this community faces), health care workers and discrimination in employment. We also presented legal steps that could be taken to change one’s name and pictures on official legal documents. This necessitated a thorough analysis of various birth, immigration and identification acts and informing the community of strong cases that could be made to advance legal recognition of their gender.

As we presented on the Pan African landscape for transgender rights, we were thrilled to discuss the exciting news from two weeks earlier that Botswana has decriminalized sodomy. This has had incredible repercussions for the perception, acceptance and legitimization of the rights of the LGBTQIA+ community at large. Botswana has also led the way for the rights of transgender persons, where in September of 2017, the High Court ruled for the right of a person to change their gender marker on their identity documents as refusing to do so was unreasonable, and violated their right to: dignity, privacy, freedom of expression, equal protection of the law, freedom from discrimination, and freedom from inhumane and degrading treatment.

The LRDC routinely conducts civic education on the history and application of Human Rights in the country. Ms. Dausab’s personal style uses interactive tools such as group discussions and activities to elicit key themes and takeaways from her presentation. For this presentation, she broke the approximately 30 community members into 3 groups, and had them complete an activity about the aftermath of a shipwreck, where we all were tasked with assigning roles (to the male and females in the fact pattern) for fetching wood, cooking, hunting, building, and engineering with the aim of outlining how cultural norms (and even domestically, how different tribes) conceptualize the traditional gender binary and male and female roles in society.

Completing the reflection activity.

One of the most pivotal parts of our presentation to the community included emphasizing not making the same mistakes as our neighbor South Africa, in the quest for equality. Here, legal progress preceded social progress. In the landmark case of Minister of Home Affairs vs Fourie, South Africa legalized same sex marriage in 2006, after a lesbian couple claimed their right to marry in a post-apartheid country. Although making South Africa a leader in the African context for marriage equality and legal protection against discrimination (the country has added protection provisions for discrimination based on sexual orientation in legislation), the case did not cause a nationwide consensus or shift in the social perception of LGBTQIA+ people. In effect, legal protection preceded public acceptance. There is currently more violence and brutality against the community in South Africa, despite the legal framework in place, than in Namibia, which does not have any legal provisions based on sexual orientation (or gender identification for that matter). It was therefore fundamental to provide a holistic account of social change during our presentation, and reinforce that the law is not always the sole answer. There needs to be incremental social change within the country based on: active citizenship (representation in government and the workforce of the community); education; media (using the arts as a powerful way to shift public perception and to foster empathy and compassion towards the community, as well as eradicate stigma related to HIV/AIDS and sex work); business indicators; and advocacy and action.*

#BeFree

The #BeFree Day that the Chairperson was invited to speak at was a very special and moving experience for me. It fused together the worlds I am passionate about of law, health, social justice, the arts and youth empowerment. The movement itself of #BeFree seeks to engage high school students with current topics that are culturally seen to be “taboo” and covers the topics specifically of LGBTQIA+, sex work and HIV/AIDS with the aim of educating youth and eradicating stigma and false information. The messages were beautifully presented, and incorporated a range of ways in which to explore these themes, including dance, comedy, theatre, the high school students themselves presenting a debate (the topic of religion versus culture), a panel discussion (with experts in legal, medical, and community activism), and of course, the open dialogue with the Chairperson, and the First Lady of Namibia (pictured to the right).

High School students from local Windhoek schools, awaiting the start of the programming.

At the #BeFree Day, alongside the Chairperson after her successful open dialogue on same sex marriage, disability rights and access to education with the First Lady of Namibia.

 

Namibia’s Diverse Women Association – UN SDGs and SOGIESC

Namibia’s Diverse Women’s Association (NDWA) requested a presentation from the LRDC to educate leaders in the community on the status of the rights of LGBTQIA+ persons in the country, with the aim of building a national linkage and intersectional human rights equality and inclusivity agenda. This was to be done by drawing upon UN systems and the Sustainable Development Goals (SDGs) in order to strategize on how exactly to advance the rights based on Sexual Orientation Gender Expression and Sex Characteristics (SOGIESC) in Namibia.

With the framework of the SDGs, we aimed to create a holistic presentation that highlighted the intersectionality of various sectors in the advancement of this community’s rights in Namibia (health protections, the police force, economic advancement, housing and education). We also presented on the language and provisions of the Constitution while drawing upon successful cases made in South Africa and Botswana. There are currently two cases currently going to the Supreme Court of Namibia for same sex marriage (we find ourselves in extremely exciting times!).

We concluded that potential law reform moving forward can take the shape of (foremost) the repeal of the criminalization of sodomy (Criminal Procedure Act of 1977), the amendment of the Combatting of Immoral Practices Act of 1980 (including the repeal of outdated and unconstitutional provisions) and the insertion of protection of the rights of persons from discrimination based on the grounds of sexual orientation and gender identification into various acts- from Labour, to Immigration, to Health Services Acts. It can also include the amendment of the Identification Act to allow gender marker changes and pictures for identification to be accepted without proof of gender reassignment surgery (which, in addition to hormone therapy, is currently not covered by insurance nor provided in the country).

Pictured with leaders from various LGBTQIA+ community grassroots organizations in Windhoek.

* “South Africa still hasn’t won LGBTQ+ equality. Here are 5 reasons why”. Retrieved from: https://www.weforum.org/agenda/2018/11/south-africa-road-to-lgbtq-equality/

A Genocide Forgotten, No More

By: Eleanor Dennis

Walking around downtown Windhoek, it is common to see streets named after German philosophers or musicians and finishing with “Strasse” rather than street. In the popular vacation town of Swakopmund, German-language bookshops outnumber English or Afrikaans shops, the architecture could be mistaken for buildings in Bavaria and it is even common to walk several blocks before hearing any language other than German spoken. Indeed, for a country twenty-eight years free from South Africa and over one hundred years free from German control, so many German colonial markers still exist in Namibia that on the surface it may seem like the wounds inflicted upon the Namibian psyche from German colonization have been healed– they have not.

Lüderitz is the site of one of the five former Namibian concentration camps.

The first colonial claim on Namibian lands came in 1797 when Britain occupied Walvis Bay, and for the next two hundred years Namibian territory remained under the control of different colonial powers. In 1883, German trader Adolf Lüderitz bought the coastal area that now bears his name, and from that moment on German troops were deployed and gained control of Namibia, then known as German South West Africa. While some of these details are known and spoken about in public discourse, many of the atrocities that occurred at the German’s hands in Namibia were left largely unaddressed and unknown by the international community. Thanks to a very important court case that is currently being litigated in New York, this has begun to change.

Genocide and the Reparations Debate

From 1904 to 1908, Germany committed genocide against the Nama and Herero people of Namibia in what the UN Whitaker report [1] has now acknowledged as one of the biggest genocides of the 20th century alongside the Ottoman massacre of the Armenians, the Khmer Rouge and the Holocaust. The Herero people had commenced a rebellion against the German soldiers and settlers at the time and the German military ordered the extermination of their people as a result. Thousands of both Herero and Nama people were killed or driven out into the desert to die, and those who survived were interned in concentration camps around the country and systematically starved and worked to death. The result was the annihilation of 80% of the Herero people and 50% of the Nama people in an extermination so massive the ramifications are still felt in these communities to this day, although no reparations have been paid to date.

The affected communities of this genocide have been seeking reparations for these atrocities for many years, but their efforts have been fruitless. In 2001 the Herero people filed a $4 bn lawsuit against the German government and two German firms, however their claims was dismissed on the grounds that international protection of civilians did not exist at the time of the conflict [2]. It was only in 2004 that the German government formally recognized the colonial-era genocide and issued an apology [3] however they maintained that there would be no compensation for the affected communities. In 2015, the German government officially recognized the atrocities constituted genocide, but ruled out reparations again to the more than 100,000 victims [4]

Members of the Nama Traditional Authority in Hoachanas, Namibia

This begs the question of whether Germany now recognizes the genocide as a crime under international law. While German politicians have acknowledged the genocide in a series of public statements in recent years, the state continues to submit legal documentation to the court that denies that the event constitutes genocide.

Current Case

This brings us to today, when Herero and Nama chiefs have yet again brought a class action lawsuit [5] against Germany accusing the state of genocide, theft, and expropriation of property when Namibia was under German colonial rule. Their demand is simple: reckoning with colonial-era atrocities and reparations akin to what was paid to Holocaust survivors. What is interesting in this case is that it is being pled in New York in U.S federal court under the Alien Tort Statute established under the Foreign Sovereign Immunities Act. This tort has been interpreted to allow foreign citizens to seek remedies in U.S courts for human-rights violations for conduct committed outside the United States in order to give a global remedy for breaches of international law (see Sosa v Alvarez-Machain case for more info).

The problem that their cause has encountered is one of jurisdiction, because the Kiobel v Royal Dutch Petroleum precedent set in 2013 establishes that the Alien Tort Statute should not apply to crimes that do not touch and concern the U.S. In order for there to be a firm basis for jurisdiction in the US under the Foreign Sovereign Immunities Act, the Herero and Nama need to demonstrate that wealth derived from the property taken during the German colonial period has a direct link to commercial property in the US.

The lawyer for the plaintiffs Ken McCallion has put forth the central argument that the Kiobel case leaves the door open for U.S courts to gain extraterritorial jurisdiction over cases of genocide. He maintains that a number of German properties in New York were purchased as a direct result of the wealth accrued from slave labour and expropriation of property during the genocide. Furthermore, he has argued that the sale of genocide victims’ human remains to the American Museum of Natural History demonstrates a valid commercial link between the genocide and American Commercial interests. Germany’s lawyer has countered that the presence of skulls at the museum was the result of a private donation from a German anthropologist and not a commercial exchange and argues as a result that the U.S does not have jurisdiction over the case.

As of August 1st, 2018 the case has been adjourned by Justice Swain who will deliver a decision in the coming weeks. As more information becomes available, I will update this post with the results of the case.

Acknowledgement and Awareness

Members of the LRDC fight for constitutional justice for all Namibians

From the current court case to my experience during my 3.5 months in Namibia, an important theme arises for me as both an intern at the LRDC and a law student in Canada that may tie this blog post together. Living in Windhoek as an outsider who had the immense privilege of working in Namibia and meeting and forming bonds with the people there, the question of how useful acknowledgement really is came up for me time and time again.

In Namibia there are many young German expats living and completing internships and the reality of the extreme social and economic inequality is that German Namibians continue to hold a large percentage of the land and wealth in the country. The German government has acknowledged the genocide and provides generous economic aid for Namibia (which currently amounts to $14m per year [6]however for Nama or Herero individuals who have been set back by the killings of their ancestors 100 years ago, these acknowledgements may fall on deaf ears. What does it mean to really acknowledge past wrongs? If victims demand reparations and are denied, does this deflate the acknowledgement?

There are many cases of reparations being won, and examples varying from the U.S paying reparations for Japanese-American internees to Canada agreeing to pay compensation to the residential schools victims [7] show that possible, though imperfect solutions do exist to begin to address past injustices. On the other hand, many reparations cases leave victims without any relief at all and reparations fall far from the only solution required to support victims and their communities.

Thus, more uniform and universal approaches are needed to address this issue and reduce the struggles experienced by the survivors and the families of victims in accessing reparations for mass atrocities. For the moment this will not help the Nama-Herero cause. What may truly help more than acknowledgement, however, is awareness.

Germany’s genocide in Namibia was forgotten for many decades by the international community, however this is beginning to change. In 2011 a popular book was published that has increased international awareness of the Namibian genocide called The Kaiser’s Holocaust: Germany’s Forgotten Genocide and the Colonial Roots of Nazism. In addition, the current case as well as Germany’s acknowledgements post-2000 have helped to increase international awareness of this issue and there is real hope that Nama and Herero families will receive compensation. The more this issue becomes discussed in the international community the more pressure will increase upon the German government to not treat Namibian victims differently than victims of the Holocaust and receive the compensation that they deserve. A genocide and victims forgotten, no more.

[1] http://www.preventgenocide.org/prevent/UNdocs/whitaker/ 

[2] https://www.theguardian.com/world/2004/aug/16/germany.andrewmeldrum

[3] http://news.bbc.co.uk/2/hi/africa/3565938.stm 

[4] https://www.forbes.com/sites/ewelinaochab/2018/05/24/the-herero-nama-genocide-the-story-of-a-recognized-crime-apologies-issued-and-silence-ever-since/#768bd62a6d8c 

[5] https://www.forbes.com/sites/ewelinaochab/2018/05/24/the-herero-nama-genocide-the-story-of-a-recognized-crime-apologies-issued-and-silence-ever-since/#768bd62a6d8c 

[6] http://news.bbc.co.uk/2/hi/africa/3565938.stm

[7] https://www.theguardian.com/world/2017/oct/06/decades-after-government-seizure-of-children-indigenous-canadians-will-receive-compensation

 

Namibian Law: in Progress and in Flux

By: Eleanor Dennis

Living in a country whose independence dates to the decade you were born in can be a reminder of both how quickly development can happen and how long institutionalized ways of thinking can take to change. Namibia’s democracy is still relatively young, having passed through several distinct stages of English, German and South African rule before becoming the Republic of Namibia in 1990. Now an independent republic, Namibia is in the process of reforming many of their laws enacted during apartheid and determining exactly what Namibian constitutionalism will look like well into the twenty-first century.

Day to day life in Windhoek is fast-paced, cosmopolitan and hectic. The downtown core is often jam-packed with taxis and private vehicles moving people to and from work inside the city centre and to some of the towns outside. There are huge avenues with six car laneways and street names like Independence Avenue and Sam Nujoma Drive which serve as almost frequent reminders of the hard-fought liberation struggle that is never far from people’s minds.

Work at the LRDC

Members of the Hoachannas Traditional Leadership with representatives from the Ministry of Justice

My work at the Law Reform and Development Commission (LRDC) is another reminder of how young Namibia’s constitutionalism really is. The Commission came into operation in 1992 and its core mandate is to examine all branches of Namibia’s laws and make recommendations for their review, reform and development. A typical work day involves the review of bills that are making their way through the Commission before being discussed at the Cabinet Committee on Legislation (CCL) and being passed on to the Attorney General, the National Assembly and eventually the National Council.

As an intern, I also work side by side with the Chairperson of the LRDC Ms. Yvonne Dausab and often accompany her to community meetings, town halls and workshops. What this meant for me was diving head-first into Namibia’s constitutionalism and getting a rare opportunity to see a law come to life almost from start to finish. What I’ve begun to develop in my six weeks in Namibia is a bigger picture of how a country’s laws shape both its present and its future—and some of the barriers that legislation can encounter in effectuating real change on the ground.

Town hall meeting in Hoachannas with the Minister of Justice

Racial Hate Speech in Namibia

Namibian society has come a long way from its racially-charged past. Every Namibian now enjoys the equal protection of his or her constitutional rights regardless of age, sex, colour, race, tribe, disability or any other of the enumerated grounds for discrimination under Article 10 of the Constitution. On the other hand, Namibia is at a crossroads with regards to one of its fundamental post-independence values—protection against racist hate speech.

Many violations of human dignity during apartheid in Namibia have been removed through legislation and policy, however there has still not been a total break with the racialized social order. This is evidenced by the inconsistent distribution of land and resources in Namibia and also in the social sphere where racial and tribal tensions continue to result in unequal treatment of individuals.

Racialized structures and racial language have survived apartheid in spite of a modern, liberal Constitution and a profound will to break with the past. Use of words making racial distinctions between people are still strongly embedded within people’s minds and discrimination continues to occur across both racial and tribal lines. Stereotypes based on tribe are particularly harmful, and continue to impact on an individual’s access to employment, land, shelter and equal treatment.

Freedom of Expression and Anti-Hate Speech Legislation

Other countries which have similar racial histories have enacted very strict legislation to protect individuals from racial hate speech in order to address past injustices and initiate a strong break from the past. These protections must be balanced with an individual’s right to express themselves, and countries like South Africa have restricted this balance to make the perpetuation of hate speech a serious crime where prosecutions have led to jail time. [1]

Namibia has followed suit and in 1991 enacted the Racial Discrimination Prohibition Act [2] to protect the gains of the long struggle against colonization, racism, apartheid and the right to non-discrimination. Few cases have been brought before the High Court, however, and as of 2018 there have been no successful prosecutions made under this Act.

One of the landmark cases that led to a 1998 amendment of the Act is the 1996 Smith v State and Others case [3] where an advertisement in a Windhoek newspaper congratulating a famous Nazi on his birthday was challenged under Section 11 prohibiting racist speech. The constitutionality of Section 11 was challenged for derogating from the protection of freedom of expression set out in Art. 21(1) and (2) of the Constitution. The Supreme Court of Namibia used the Oakes test and while the advertisement failed on every requirement, the Court deemed that the infringement did not justify restrictions on freedom of speech under the Act because the groups of persons concerned (Jewish people) had “never featured or suffered in the pre-independence era in Namibia”. The Act’s objective was deemed to be the prevention of apartheid-type racism and while the advertisement was harmful to Jewish people, it did not espouse apartheid values and therefore the Act could not justify infringing upon the advertiser’s freedom of speech in that situation.

Former Dean of the University of Namibia Faculty of Law Nico Horn criticizes the Smith case precedent, [4]  arguing that the Act should not only offer protection to previously disadvantaged groups in a country where racism has many forms and minority groups continue to face discrimination today. Horn argues that a broad interpretation of the term “racial” group in the Racial Discrimination Prohibition Act is needed to cross the bridge from a racist to a non-racist society and the Smith case failed to further this. Alternatively, the former Ombudsman Clement Daniels argued [5] that laws that prohibit racism are not enough to curtail racist expression. Laws that promote national unity and anti-racism promotion campaigns are equally needed in order to change one of the roots of the problem—people’s mindsets.

Moving Forward with the Racial Discrimination Prohibition Act

The fact that only few cases have ever come to Court under the Act has led many to question its effectiveness. There are a myriad of reasons for this, ranging from victims having inadequate information concerning their legal rights, lacking the resources to enter into the complex judicial process, and fearing social censure if they come forward.

An article that Ms Dausab and I published in The Namibian on hate speech legislation

This puts Namibia in a particularly important position when it comes to determine which direction the country will take on freedom of expression and what hate speech regulation will look like. Legislation exists protecting individuals from discrimination and racist hate speech, however as long as the Act remains unarticulated by the Courts confusion will remain in terms of what legal protections exist to combat racism in a judicial context in an independent Namibia.

Moving Forward at the LRDC

Like Namibia’s constitutional law maturing case by case and bill by bill, I’m learning to take my experience here at the LRDC step by step. Namibia’s past and present is more complex and nuanced than I can manage and at times I fear I am only scratching the surface of the real-life issues a country must grapple with in the first decades after its independence. Like Namibia, I too am developing an understanding that takes two steps forward before falling one giant step back when faced with issues like racism that legislation has not be effective at combatting.

The perspective the LRDC is restricted to is a legal one, but that perspective need not be the only one. Namibian law is a work in progress and so is building a constitutional democracy. That much, at least, I understand. 😉

 

[1]   https://www.bbc.com/news/world-africa-43567468

[2]  http://www.lac.org.na/laws/annoSTAT/Racial%20Discrimination%20Prohibition%20Act%2026%20of%201991.pdf

[3] https://namiblii.org/na/judgment/high-court/96/16

[4] http://www.kas.de/upload/auslandshomepages/namibia/Namibia_Law_Journal/09-1/horn1.pdf

[5] https://www.namibian.com.na/index.php?page=archive-read&id=147374

 

 

 

 

 

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, it 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!

Income Inequality and an Appetite for Change

By Zachary Shefman

Gaba, on my morning drive to work, carefully navigates around the men and women that file past as they climb the sloped, well-paved streets of the neighbourhood in which I live. Many of them wear dark blue jump suits to signal both that they are labourers, and that they are currently on the job. Since there are relatively few sidewalks in Windhoek, they are forced to climb the streets on the shoulders of the road.

Windhoek, Namibia

Windhoek, Namibia

As we progress along Robert Mugabe Avenue towards the centre of the city, I am surprised at the number of luxury cars that accompany us on our route – Mercedes-Benz, Audi, and Porsche, among others. I ask my co-worker sitting next to me what the green license plates, in contrast with the more typical yellow, on many of the luxury cars represent. “Government,” he says, “this way they cannot use these cars how they please”.

We approach the Parliament buildings to drop off one of our passengers. However, unlike most days, we are prohibited from entering the premises. The roads are blocked with police vehicles, and men and women in uniform are posted around the garden entrance every ten to fifteen feet.

Today, June 16th, is a special day for a number of reasons. For one, the Indian President is on a state visit to Namibia and is slated to address the Namibian National Assembly. Security is accordingly tight. For another, it is the Day of the African Child. This day marks the student uprising of 1974 in Soweto, South Africa, where students marched to oppose the establishment of Afrikaans as the language of instruction.[1] Most importantly of all, however, it is the day chosen by the Affirmative Repositioning movement (AR) to protest the government’s ostensible commitment of NAM$ 2.2 billion to the construction of new Parliament buildings.[2]

The AR is an organization whose principal aim is to lobby for the redistribution of land to Namibian youth.[3] They have called for a day of action to demand that the government reallocate the resources allegedly earmarked for Parliament to the distribution of 25 000 plots to the landless instead.[4] They plan to deliver a petition to the Speaker of the National Assembly, Peter Kajavivi, with their demands.[5]

The AR, however, has encountered a number of obstacles to their plans for a demonstration. A week ago, the Inspector-General of the Namibian Police Force, Sebastien Ndeitunga, placed a ban on all public demonstrations from June 13th to 18th.[6] Four days ago, the Ministry of Education, Arts and Culture issued an unusual directive to schools across the country requiring that they organize activities for the Day of the African child, rather than allow teachers and students the typical June 16th off.[7]

When I arrive at the office, I can hear the distant hum of shouts and horns of a demonstration. The defiant AR has continued with their march. I worry that the protest will degenerate into violence.

 “Come hell or high water we will march” – Dimbulukeni Nauyoma, an activist of the Affirmative Repositioning movement.[8]

It is June 17th, and I anxiously fumble through the newspapers strewn across my colleague’s desk. Despite my concerns, the protest was ultimately both successful and peaceful.[9] The Namibia National Teacher’s Union and the Namibian National Students’ Organization, for instance, defied the Ministry’s order to hold and attend commemorative activities on June 16th.[10] Ndeintunga, the Inspector-General, ultimately came to an agreement with the AR. They decided to redirect the route so that the march ended at Synman Circle, rather than the Parliament buildings, provided that the Speaker of the National Assembly received their petition.[11] Finally, despite the Speaker’s initial refusal to greet the protestors in order to accept the petition, he eventually relented.[12]

My office at the Law Reform and Development Commission

My office at the Law Reform and Development Commission

This year marks the 26th anniversary of Namibia’s independence, and the period in which the first post-apartheid generation has finally come of age. These are the men and women “born free” – i.e. born under a democratic government, rather than the oppressive rule of the former South African occupiers.

Living conditions between pre and post-independence Namibia have changed considerably. The country has made significant progress reducing poverty, for instance, though the number of indigent Namibians is still relatively high. According to the Namibian Statistics Agency, while 69.3% of Namibians lived below the poverty line in 1993/4, by 2009/10, that number was reduced to 28.7%.[13]

For many Namibians, however, the pace of change has not progressed fast enough. For example, the per capita income in 2010–11 was only NAM$ 14 559 (approximately CAN$ 1 332).[14] Meanwhile, the cost of living is high. While a small loaf of bread can be purchased for approximately NAM$ 9 (CAN$ 0.82), fresh vegetables can be unaffordable for most – where 120 grams of mushrooms costs approximately NAM$ 33 (CAN$ 3.02), and a head of cauliflower, NAM$ 35 (CAN$ 3.20).

Income inequality in Namibia, moreover, remains a persistent problem. While in 2003/2004, the Gini coefficient in Namibia was approximately 0.60, in 2009/10 it remains largely the same at 0.59[15] – to provide some measure of contrast, the OECD reported Canada’s coefficient at 0.32.[16]

Those most subject to poverty are Namibia’s youth. While the unemployment rate for Namibians generally sat at 33.8% in 2010/11, it was as high as approximately 53% for 20–24 year olds.[17]

The government’s response to the enduring problem is embodied in President Hage Geingob’s “Harambee Prosperity Plan” (HPP). The president has defined his term by it. Many Namibians I know routinely invoke it. “Namibians,” Geingob writes, “want a house where everyone feels a sense of belonging, where everyone is presented with a fair opportunity to prosper in an inclusive manner and by so doing, ensure [sic] that no one feels left out”.[18]

The HPP is organized around a set of pillars under which more specific policies and aspirations are outlined. Under the pillar of “economic advancement”, the government has announced its intention to implement a “broad-based economic empowerment framework”.[19] The goal of the framework is to realize “equity in society in general and in particular [sic] greater equity in the ownership of productive assets” of “disadvantaged groups”.[20]

The Law Reform and Development Commission, an institution operating under the Ministry of Justice, and the institution at which I work, has been tasked with drafting the legislation to implement the framework mentioned above. After the publication of the HPP, the policy was considerably elaborated upon in a formal policy document, and a bill was drafted by the Commission – the New Equitable Economic Empowerment Bill (NEEEB).

The latest formulation of the plan establishes thresholds for the participation of “previously disadvantaged persons” (PDPs) in all medium to large-sized private sector enterprises. “Previously disadvantaged persons” refers to those individuals who have been disadvantaged by “past discriminatory laws and practices”. Despite the definition’s obvious reference to those subject to apartheid, its scope is broad enough to encapsulate women and people with disabilities of any colour. And although the definition does not explicitly encompass Namibian youth, presumably, according to the government’s policy document, they, too, are the bill’s intended beneficiaries.[21]

NEEEB facilitates the participation of PDPs in private sector enterprises in a number of ways. To provide just two examples, under the bill as it is currently formulated, all medium to large-sized private sector enterprises will be required to sell 25% of the value of their businesses to PDPs, and 50% of their “combined board and top management structures” must be staffed by PDPs. These thresholds are mandatory in the sense that registration, licensing, grants, guarantees and concessions issued by the government will only be provided to those who meet or exceed the thresholds above.

Much of my time in Namibia has been committed to facilitating the Commission’s work on the project. I have been asked to assist with synthesizing and substantiating the public’s criticisms of the bill, to identify issues with NEEEB, to write a legal memorandum on the potential for the bill’s conflict with the Namibian constitution, and finally, to present proposals for the bill’s reform.

Pictures of Namibia's three Presidents hang in the boardroom of the Law Reform and Development Commission. President Hage Geingob is pictured on the left.

Pictures of Namibia’s three Presidents hang in the boardroom of the Law Reform and Development Commission. President Hage Geingob is pictured on the left.

The activities of the Affirmative Repositioning Movement are demonstrative, in part, of the public’s – and in particular, the youth’s – increasing expectations of greater equity in the distribution of the country’s wealth, especially given Namibia’s liberation from both apartheid and occupation. NEEEB forms an integral part of the government’s answer. Whatever the merits of that answer, I only hope that I may assist in its formulation such that the lives of Namibians may be improved going forward in a manner that all Namibians consider just.

The appetite for change in the form described above is, perhaps, best encapsulated by something that the Chairperson of the Commission, Yvonne Dausab, had once pointed out to me: “The people are getting anxious. It has been 26 years. They have been waiting too long”.


[1] Béatrice Debut, “Il y a 40 ans, Soweto se soulevait contre l’apartheid”, La Presse (15 June 2016), online: <http://www.lapresse.ca/international/afrique/201606/15/01-4992137-il-y-a-40-ans-soweto-se-soulevait-contre-lapartheid.php>.

[2] “It is D-Day”, The Namibian Sun (16 June 2016), online: <http://www.namibiansun.com/print/94507>

[3] Vaino Tuhafeni Hangula, “Affirmative Repositioning: A Breakdown”, Confidenté (28 January 2016), online: <http://www.confidente.com.na/2016/01/affirmative-repositioning-a-breakdown/>

[4] Ndama Nakashole, “Youth to protest planned N$2,2b new parliament”, The Namibian (13 April 2016), online: < http://www.namibian.com.na/index.php?page=archive-read&id=149616>

[5] “It is D-Day”, The Namibian Sun (16 June 2016), online: <http://www.namibiansun.com/print/94507>

[6] “Public demonstrations banned: Ndeitunga”, The Namibian (08 June 2016), online: <http://www.namibian.com.na/Public-demonstrations-banned-Ndeitunga/41494/read>.

[7] Jemima Beaukes, “We will march”, Namibian Sun (09 June 2016), online: <http://www.namibiansun.com/politics/we-will-march.94321>.

[8] Ibid.

[9] Selma Shiwaya, “Police pleased with demonstrators”, The Patriot (17 June 2016), online: <http://thepatriot.com.na/index.php/2016/06/17/police-pleased-with-demonstrators/>

[10] Jemima Beaukes, “We will march”, Namibian Sun (09 June 2016), online: <http://www.namibiansun.com/politics/we-will-march.94321>.

[11] Theresia Tjihenuna, “Police and AR agree on march”, The Namibian (13 June 2016), online: <http://www.namibian.com.na/Police-and-AR-agree-on-march/41661/read>

[12] Selma Shiwaya, “Police pleased with demonstrators”, The Patriot (17 June 2016), online: <http://thepatriot.com.na/index.php/2016/06/17/police-pleased-with-demonstrators/>

[13] Poverty Dynamics in Namibia: A comparative study using the 1993/94, 2003/04 and the 2009/10 NHIES surveys, Namibia Statistics Agency (November 2012), at 10.

[14] Namibia Household Income and Expenditure Survey 2009/2010, Namibia Statistics Agency (2012) at 131.

[15] A figure of 1 represents the most unequal society, and 0, the most equal. Namibia Household Income and Expenditure Survey 2009/2010, Namibia Statistics Agency (2012) at 141.

[16] OECD (2016), OECD Factbook 2015-2016: Economic, Environmental and Social Statistics, OECD Publishing, Paris at 55. Note that the measure was anchored to “2012 or latest year available”.

[17] Namibia Household Income and Expenditure Survey 2009/2010, Namibia Statistics Agency (2012) at 46

[18] Harambee Prosperity Plan: Namibian Government’s Action Plan towards Prosperity for All, Republic of Namibia (2016/17) at 4.

[19] Ibid at 8, 62.

[20] Ibid at  28–9.

[21] The New Equitable Economic Empowerment Act, 2015 (Namibia) as of 15 July 2016 at 4.

Life at the Commission

By Zachary Shefman

The Law Reform and Development Commission (LRDC), the government department for which I work, is housed in a high-rise at the very core of Namibia’s capital, Windhoek. While the staff contingent is relatively small – beyond the Chairperson, her deputy and support staff, there are eight legal researchers – the workspace is accommodating: we all have our own spacious offices.

The downtown core of Windhoek.

The downtown core of Windhoek.

The legal researchers at the Commission are dynamic and quite young. Apart from one researcher, who just turned thirty, all legal researchers are in their twenties. They are thus the first generation to grow up in post-independence Namibia.

The LRDC’s work is wide-ranging. They convert government policy into law, review bills drafted by other government units and advise accordingly, conduct nation-wide consultations with the public to collect their input on forthcoming legislation, and produce research for the purposes of making recommendations for the reform of Namibian law.

I have been fortunate enough to have been immediately and deeply integrated into the Commission’s work. In my first week, I was provided with an open door to assist with the projects of any of the legal researchers, who amongst themselves, are responsible for the reform of the full ambit of Namibian law.

Some of my work involved scrutinizing bills before their review at the Cabinet Committee of Legislation (CCL) – an executive body responsible for examining bills before they are presented to Parliament. I would review, for instance, the interplay of a bill’s provisions to identify unintended consequences, and assess its contents for conflicts with the Namibian constitution, among other things.

Throughout the course of this work my warm, and welcoming colleagues would assist me in my efforts to familiarize myself with the Namibian legal framework. I, in turn, would present my own perspective on approaching the work.

Namibia is a relatively small country. It has a population of approximately 2.3 million people. As a result, it is both considerably easier as an individual to have a more acute impact on the public, and to acquire exposure to Namibian life and the key players of Namibia’s government. Within the first six weeks of my arrival of Namibia, I was able to meet and chat with the country’s Ombudsman, to pose questions in person regarding the legislative process to the Attorney-General, and to meet the Prime Minister herself in a meeting with her Office. Moreover, I was fortunate enough to travel across the country for the Commission’s consultations on a forthcoming bill. As a result, I would hear the concerns and pleas of the Namibian public – from the urban, business elite in the country’s capital to the concerns of representatives of disability rights groups in the country’s densely populated north.

On the road to Rundu for public consultations on the New Equitable Economic Empowerment Bill.

On the road to Rundu for public consultations on the New Equitable Economic Empowerment Bill.

Another benefit of Namibia’s relatively small size is how well-connected and experienced some of its key players tend to be. The Chairperson of the Commission, for instance, sits on the Cabinet Committee on Legislation. Some of my recommendations and criticisms of various bills have accordingly influenced discussion at the CCL.

My experience in Namibia has been immersive, eye-opening and all around life-changing. I have learned immensely about a new legal system and culture. I have had deep and intimate exposure to the most inner-workings of Namibian government. I have had the opportunity to contribute to the reform of Namibian domestic policy. Most important of all, however, I have found elements that I will look for in a future career in law.

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