Committee against Torture
List of issues in relation to the third periodic report of Namibia *
Issues identified for follow-up in the previous concluding observations
1.In its previous concluding observations, the Committee requested the State party to provide information on the follow-up to its recommendations on the adoption of the bill on prevention and combating of torture, conditions of detention and respect for the principle of non-refoulement. Noting the reminder from the Committee’s Rapporteur for follow-up to concluding observations, dated 20 August 2018, to which there was no reply, the Committee considers that the State party has not cooperated with its follow-up procedure. These points are therefore addressed in paragraphs 2, 7 and 13 to 16 of the present document.
Articles 1 and 4
2.With reference to information provided in the State party’s periodic report, please provide updated information on the current status of the Prevention and Combating of Torture Bill, submitted to the Minister of Justice by the Law Reform and Development Commission. Please also provide any information on amendments to the Bill that seek to bring it further into line with the State party’s obligations under the Convention, as previously recommended by the Committee, including provisions that criminalize the acquiescence and complicity of State officials, or officials acting in an official capacity, to acts of torture, including acts of torture committed by individuals outside of their command, and the establishment of minimum mandatory sentences for acts of torture. If the Bill has not yet been adopted, please provide information on any other initiatives taken by the State party to explicitly criminalize acts of torture. Please indicate whether acts amounting to torture may be subject to a statute of limitations, both under current and prospective legislation. Noting the State party’s assertion, in its second periodic report, that the Convention is directly enforceable by the judiciary and quasi-judicial bodies, please provide examples of cases in which it has been directly invoked before domestic courts and describe the outcomes of these cases.
Article 2
3.With reference to paragraph 6 of the State party’s periodic report and the previous recommendations of the Committee, please describe any initiatives taken by the State party to enshrine in its legislation fundamental legal safeguards, in particular: (a) the right to have access to a lawyer, including the right to access free and effective legal aid in cases of indigence; (b) the right to request and receive a medical examination by an independent physician, preferably of one’s own choice; (c) the right for individuals, at the time of arrest, to be informed of their rights, along with the reasons for their arrest and any charges against them; (d) the right to be brought promptly before a judge, regardless of the reasons for arrest; (e) the right to notify a relative or other person of one’s choice of one’s deprivation of liberty; and (f) the obligation of the authorities to maintain and promptly update detention registers at places of detention and in a central register. Should any of the aforementioned rights already be established in legislation, please provide information regarding the source. Please provide information regarding any cases in which the authorities have failed to comply with these safeguards, including the number of such complaints registered, the number of investigations carried out and their outcomes, and any cases in which disciplinary or other measures were taken against officials found responsible for violations, and the nature and duration of the sanctions handed down. Please provide detailed information regarding complaint mechanisms available to report violations, and how they function in practice. Please also indicate the number of habeas corpus petitions registered by the courts during the reporting period and the number of cases in which such petitions were granted, resulting in the release from detention of the petitioner during the reporting period.
4.Please provide any relevant updates on the progress of the Ombudsman Bill, as referenced in paragraph 7 of the State party’s periodic report, including whether the Bill has been tabled before the National Assembly and adopted. Please provide further information on the content of the Bill, particularly whether it includes provisions specifying a fixed tenure for the Ombudsman, endowing the Ombudsman’s Office with the power to recruit its own staff and establishing a specified source of funding. Please also specify the human and financial resources allocated to the Office during the reporting period.
5.With reference to paragraph 22 of the State party’s periodic report, please provide information on the number of complaints of gender-based, domestic or sexual violence received by the authorities during the reporting period, along with statistical data disaggregated by age and ethnic origin or nationality of the victims. Please specify the number of investigations and prosecutions undertaken regarding gender-based, domestic or sexual violence, both on the basis of complaints and proprio motu, and any convictions secured and the sanctions handed down in such cases. Please provide information on the protection and support services available to victims of domestic violence and the provision and availability of shelters for victims of domestic violence, including the number of such shelters, the number of places available and the occupancy rates during the reporting period. With reference to paragraphs 24 and 25 of the State party’s periodic report, please provide information on the outcomes relating to gender-based violence from the Fifth National Development Plan and the outcomes of the National Plan of Action on Gender-based Violence (2019–2023), including any mechanisms in place to monitor the effectiveness of these initiatives. Please also provide information on the current status of the Combating of Rape Amendment Bill, the Combating of Domestic Violence Amendment Bill, the Combating of Sexual Exploitation Bill and the Combating of Harassment Bill. Please indicate what measures have been taken during the reporting period to prevent and punish sexual violence against children.
6.With reference to the Committee’s previous recommendation, please provide up-to-date statistics on complaints, investigations, prosecutions, convictions and sentences imposed on perpetrators of criminal acts relating to harmful traditional practices, including child marriage and sexual assault in connection with the ritual of Olufuko. Please describe the measures that the State party has taken to strengthen its efforts to combat harmful traditional practices, including through education and legal prohibitions.
Article 3
7.Taking into account the information provided in paragraph 16 of the State party’s periodic report, please provide details of any steps taken to amend section 24 (1) of the Refugees (Recognition and Control) Act, 1999, in order to respect the State party’s obligations under article 3 of the Convention, which establishes an absolute prohibition of refoulement when there is a risk of torture. Please provide data on the number of asylum applications received during the period under review, the number of successful applications and the number of asylum-seekers whose applications were accepted because they had been tortured or might be tortured if returned to their country of origin. Please provide updated information on existing appeals mechanisms. Please describe the mechanisms in place to identify individuals in need of international protection and describe the procedure followed when a person invokes this right. Please indicate whether individuals facing expulsion, return or extradition are informed that they have the right to seek asylum and to appeal a deportation decision and, if so, whether such appeals have suspensive effect.
8.With reference to paragraph 20 of the State party’s periodic report, please explain how the statement that Namibian immigration laws do not discriminate on the basis of sexual orientation is consistent with section 39 (2) (f) of the Immigration Control Act, No. 7 of 1993, which bars individuals convicted of sodomy from entering Namibia. Please provide information on any steps taken to amend this provision, in line with the Committee’s previous recommendation to ensure that individuals at risk of persecution owing to their sexual orientation or gender identity are not subject to refoulement and have equal access to asylum without discrimination. Please also indicate the number of asylum applications received from individuals claiming persecution on the basis of their sexual orientation or gender identity, the number of successful applications on these grounds and the number of applications that have been rejected, including the countries to which the individuals were returned, extradited or expelled.
9.Please provide information on the measures taken by the State party during the reporting period to mitigate the risk of torture or ill-treatment faced by stateless persons. Please explain why the State party has not ratified the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa or acceded to the Convention relating to the Status of Stateless Persons or the Convention on the Reduction of Statelessness, as previously recommended by the Committee. With reference to paragraphs 17 and 18 of the State party’s periodic report, please provide information on the outcome of the regional consultations on those three instruments and updated information on the work of the National Working Committee on Statelessness and the status of the draft national action plan on statelessness. If the plan has been implemented or is under implementation, please provide information on the results achieved to date.
Articles 5–9
10.Please provide information on any case in which the State party has initiated a prosecution for the crime of torture pursuant to the Geneva Conventions Act, No. 15 of 2003, section 2 (1), which permits the prosecution of any person who, in Namibia or elsewhere, and irrespective of nationality, commits, aids, abets or procures the commission of a grave breach of the Geneva Conventions of 12 August 1949.
Article 10
11.With reference to paragraphs 59 to 65 of the State party’s periodic report, please provide data on the number of law enforcement officials, prison staff, military officers, investigators, judicial personnel and border guards who have attended educational programmes which include instruction on the provisions of the Convention against Torture. Noting the compilation in 2015 of the “Prevention of Torture Training Manual for Police Officers”, please provide updated information on the distribution and use of the Manual and on courses that include instruction on the information contained therein. Please indicate whether similar manuals have been compiled for the other aforementioned groups. Please also indicate whether the State party has developed a methodology to assess the effectiveness of training, informational materials and educational programmes in reducing cases of torture and ill-treatment and, if so, please provide information on the methodology.
12.Please describe the steps taken to improve methods of investigation, including training programmes on non-coercive interrogation techniques. Please also describe any training programme developed for judges, prosecutors, forensic doctors and medical personnel dealing with detained persons on detecting and documenting the physical and psychological sequelae of torture, including specific training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), as revised.
Article 11
13.With reference to the Committee’s previous recommendations and paragraphs 8 and 9 of the State party’s periodic report, please describe the specific measures taken during the reporting period to improve prison conditions and ensure that they are in conformity with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). Please provide information about the capacity of and actual occupancy rates in all places of deprivation of liberty in the State party. Noting the information provided regarding the development by the Namibian Correctional Service of a health policy, please provide information on the outcomes of the implementation of the policy, especially as they relate to communicable diseases such as tuberculosis, HIV/AIDS and hepatitis. Please indicate whether the policy includes relevant support for mental health. Please also indicate whether the State party intends to amend the Correctional Service Act, No. 9 of 2012, so as to explicitly prohibit corporal punishment in detention facilities following the Supreme Court’s decision in Ex parte: Attorney-General in re: corporal punishment by organs of State.
14.Please provide statistics on the number of individuals currently in pretrial detention and the average length of pretrial detention in the State party during the reporting period. Please describe any steps taken by the State party to reduce the use and length of pretrial detention. Please indicate, in particular, whether the State party has taken steps to recruit additional magistrates, reduce judicial backlogs or use alternatives to detention. Please include statistics on the use of non-custodial measures, as previously recommended by the Committee.
15.Please provide statistical data on deaths in custody during the reporting period, disaggregated by place of detention, sex, age and ethnicity or nationality of the deceased and cause of death. Please provide information on the investigations carried out into these deaths in custody, including the authority that carried them out and whether there is any institutional or hierarchical connection between the investigators and the alleged perpetrators. Please indicate whether any police or prison staff have been subjected to criminal or disciplinary punishment in cases involving death in custody during the reporting period. With reference to the Committee’s previous recommendations, please provide information on the progress made in investigating the circumstances of the death in police custody of William Cloete on 1 April 2007.
16.Please provide disaggregated statistics on inter-prisoner violence in the State party during the reporting period, including investigations and prosecution of offenders, and sentences or sanctions handed down. Please also provide statistics on individuals with HIV/AIDS in places of deprivation of liberty during the period under review, organized chronologically and disaggregated by gender.
17.Please provide information on the number of visits carried out by the Ombudsman, visiting judges and other independent national and international actors and organizations to places of deprivation of liberty during the reporting period. Please indicate whether the Ombudsman is mandated to carry out unannounced visits to places of detention and, if so, how many such visits took place. Please also provide information on the findings and recommendations of the Ombudsman and of visiting judges following their visits, and the actions taken by the State party in response.
Articles 12 and 13
18.Please provide data on all complaints of acts meeting the definition of torture or ill-treatment in the Convention received by the authorities during the reporting period, including those classified as assault, homicide or other offences under domestic law. Please specify the number of such complaints received by the Ombudsman and the number of complaints received by the Internal Investigation Directorate. Please indicate how many of these complaints were investigated, the authority that carried out the investigations, the number of investigations that resulted in criminal prosecution, the charges filed and sentences applied in cases of conviction, and the number that resulted in disciplinary sanctions and their type and duration. Please provide data on the number of disciplinary actions taken against correctional officers for disciplinary offences committed against detainees under section 50 of the Correctional Services Act, 2012. Please describe the measures taken by the authorities to investigate reports of police brutality during the reporting period, including allegations that police officers assaulted and seriously injured several individuals in Grashoek in 2017, while searching for escaped detainees. Please indicate whether a criminal investigation was opened into those allegations. Please provide information on any steps taken to increase the independence of the Internal Investigation Directorate, in line with the previous recommendation of the Committee. With reference to paragraph 71 of the State party’s periodic report, please specify what protection and assistance measures are provided under the Witness Protection Act (No. 11 of 2017) to those who have witnessed crimes and are providing evidence to the authorities. Please indicate whether the Witness Protection Advisory Committee has been established and operationalized and, if so, please provide information on its activities to date.
19.Please provide data on complaints received concerning sexual abuse and exploitation of refugees by public officials or non-governmental workers at the Osire refugee camp and indicate whether any of these complaints have resulted in investigations and prosecutions and if any victims of such violence have obtained redress. Please provide information on the progress and outcome of any investigations into sexual assault allegations made against the former police commandant of the Osire camp.
20.With reference to paragraph 14 of the State party’s periodic report, and notwithstanding the state of emergency declared at the time, please provide information on any investigations into or prosecutions of members of the Namibian police force regarding alleged acts of torture of suspected participants in the secession attempt in the Caprivi region in 1999, including as recounted by a witness for the prosecution in the retrial of eight of the alleged secessionists in March 2019 and by the Inspector General of the Namibian police force, as previously recommended by the Committee.
21.Please provide information on the steps taken by the authorities during the reporting period to investigate reports of enforced disappearances in the context of the liberation struggle, including the disappearance of former members of the South West Africa People’s Organization, and whether the alleged victims and their families have obtained redress.
Article 14
22.With reference to paragraph 74 of the State party’s periodic report, please provide updated information on the number of claims for compensation made in relation to allegations of torture, the number of successful claims and the amounts ordered and actually paid out in each case. Noting the information provided in paragraph 75 of the State party’s periodic report, please provide information on any ongoing reparation programmes, including those providing specialized treatment for trauma and other forms of rehabilitation, for victims of torture or ill-treatment and on the material, human and budgetary resources allocated for their effective functioning.
Article 15
23.With reference to the information provided in paragraphs 76 and 77 of the State party’s periodic report, please provide examples of any cases in which the courts have found evidence to be inadmissible on the grounds that it was obtained through torture or cruel, inhuman or degrading treatment, as enshrined in article 12 (1) (f) of the Constitution, or other instances in which evidence was found to be inadmissible under section 219A of the Criminal Procedure Act 51 of 1977. Please indicate whether, as previously recommended by the Committee, the authorities investigated claims that evidence admitted during the criminal trials of the alleged Caprivi secessionists was obtained through torture. Please describe the outcome of those investigations and indicate whether any evidence was declared inadmissible on these grounds.
Article 16
24.Please explain how acts of cruel, inhuman or degrading treatment or punishment are currently defined and prohibited in domestic law, given the absence of statutory recognition that such acts are crimes. Please indicate whether any data on acts of cruel, inhuman or degrading treatment are collected. If they are, please share them with the Committee.
25.Please clarify whether there are any remaining circumstances in which corporal punishment of children might be permitted in the State party. Please provide information on the steps taken to implement section 228 (3) of the Child Care and Protection Act, which prohibits corporal punishment in schools, prisons and police cells. Please indicate whether the child justice bill has been adopted and whether the State party has taken steps to establish an appropriate juvenile criminal justice system.
26.With reference to paragraph 33 of the State party’s periodic report, please indicate whether forced sterilization is explicitly criminalized in the legislation of the State party. Please also indicate whether there have been any prosecutions or other sanctions handed down in cases of forced sterilization.
27.Please provide information on the measures taken to ensure that all crimes and acts of violence that target persons on the basis of their sexual orientation or gender expression or identity are properly and promptly investigated and prosecuted.
Other issues
28.Please provide information on any considerations or discussions ongoing in the State party regarding the acceptance of the individual complaints procedure under article 22 of the Convention. Please also provide information on any considerations or discussions ongoing in the State party regarding the signature and ratification of the following international instruments:
(a)The Optional Protocol to the Convention;
(b)The International Convention for the Protection of All Persons from Enforced Disappearance;
(c)The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
29.Given that the prohibition of torture is absolute and cannot be derogated from, even within the framework of measures relating to states of emergency and other exceptional circumstances, please provide information on any steps that were taken by the State party during the coronavirus disease (COVID-19) pandemic to ensure that its policies and actions complied with its obligations under the Convention against Torture. In addition, please specify the measures taken in relation to persons deprived of their liberty, including in places of confinement such as homes for older persons, hospitals or institutions for persons with intellectual or psychosocial disabilities.
30.Please describe the extent to which the implementation of the Prevention and Combating of Terrorist and Proliferation Activities Act, No. 4 of 2014, has been compatible with the State party’s obligations under the Convention. Please specify the number of convictions under legislation adopted to combat terrorism, provide information on the legal safeguards and remedies available in law and in practice for persons suspected of terrorism or other security-related offences and indicate whether there have been complaints of the non-observance of international standards in applying measures to combat terrorism and, if so, what the outcome was.