ENACTMENT OF MARRIED PERSONS EQUALITY ACT IN NAMIBIA PRAISED BY EXPERTS OF WOMEN'S ANTI-DISCRIMINATION COMMITTEE

Press Release
WOM/976

ENACTMENT OF MARRIED PERSONS EQUALITY ACT IN NAMIBIA PRAISED BY EXPERTS OF WOMEN'S ANTI-DISCRIMINATION COMMITTEE

The passage of the Married Persons Equality Act was a major development in the area of legal capacity in Namibia, the Committee on the Elimination of Discrimination against Women was told this morning by that country's Director- General of Women's Affairs in the Office of the President.

Introducing her country's initial report on its implementation of the Convention on the Elimination of All Forms of Discrimination against Women, Netumbo Ndaitwah said the enactment of the Married Persons Equality Act meant that women married under civil law now stood on a completely equal footing with their husbands. The Act provided for equal guardianship of children born to couples united in either civil or customary marriage.

The concept of marital power which applied to civil marriages in the past had limited women's ability to engage in financial transactions without the consent of their husbands, she said. However, by the Act, couples would be required to consult each other and would have identical powers. Further, the wife's domicile would be independent of her husband's in respect of both civil and customary marriages.

Namibia's report was presented under article 18 of the Convention, which requires States parties to submit reports within one year after accession and thereafter at least every four years. Reports are to focus on legislative, judicial and administrative measures adopted by States to give effect to the provisions of the Convention and on progress achieved in that regard. The Committee reviews those reports and formulate general recommendations to the States parties.

Commenting on the Namibian report, experts lauded the passage of the Married Persons Equality Act. However, they noted that, despite new legislation, women still faced discrimination arising from deep-seated traditional customary law. They wondered how the Government intended to reconcile constitutional guarantees for women and discriminatory practices under that law. It was noted that the problem was not limited to Namibia; it affected many other African countries as well.

Women's Anti-Discrimination Committee - 1a - Press Release WOM/976 336th Meeting (AM) 8 July 1997

In that context, the need to intensify programmes to re-examine the traditional roles of men and women was stressed. Experts were also curious about how the Government planned to prepare the ground for changes in customary laws and what steps it would take to ensure public respect for such changes.

The creation of an Ombudsman in Namibia and the appointment of a woman to that position was lauded by the experts. In addition, they noted the appointment of the first woman judge in the country and hoped it would pave the way for more such appointments.

The Committee will meet again at 3 p.m. today to continue its discussion of the initial report of Namibia.

Committee Work Programme

The monitoring body for the Convention on the Elimination of All Forms of Discrimination against Women met this morning to take up the initial report of Namibia (document CEDAW/C/NAM/1).

Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed under article 18 of the Convention to submit national reports one year after becoming a State party and then at least once every four years, on legislative, judicial, administrative and other measures they have taken to comply with their treaty obligations. The Committee on the Elimination of Discrimination against Women reviews the report and formulates general recommendations to the States parties on eliminating discrimination against women.

In its initial report, Namibia, which acceded to the Convention in 1992, states that on 21 March 1990 it became an independent country after more than 100 years of colonialism. After enduring apartheid under South Africa, the government faces the task of restructuring virtually every aspect of the country. A Department of Women's Affairs was established shortly after independence to play a coordinating role in respect of gender issues. In general, Namibia's various ministries are gradually moving away from a tendency to compartmentalize "women's issues" towards a more integrated approach to gender policy.

Sex discrimination is explicitly forbidden by the Namibian Constitution, the report says. Women who experience such discrimination may seek help from the courts or from the Ombudsman, an independent government official responsible for investigating such complaints.

According to the document, reports of rape and attempted rape are increasing each year. There are many aspects of the current law on rape which are discriminatory and ineffective, and a wide range of Namibian groups support law reform in that area. The Government acknowledges the need for urgent action on rape law and work in that regard is already under way.

Further, sexual harassment in the employment context is forbidden by the Labour Act, but women still need to be encouraged to speak out on the issue. While little information is available on record on the incidence of domestic violence, it is known to be a widespread and serious problem. The existing legal approaches to domestic violence are admittedly inadequate. More research is needed to guide law reform and policy formulation in the area.

The Namibian Constitution authorizes affirmative action for women without requiring the enactment of such measures, the report says. Post- independence statutes implementing affirmative action have generally taken two forms: provisions which ensure women's presence on important decision-making bodies and general authorizations for affirmative action in specific fields, which could be used as a basis for affirmative action for women. In addition, various forms of maternity protection have been implemented, including 12 weeks of maternity leave and income support during leave period. The Labour Law guarantees that a woman on maternity leave will maintain her job and level thereof.

Men still tend to dominate women in the family context and male control is reinforced by religious beliefs, cultural practices and remaining inequities under general and customary law, it says. There is an urgent need for increased public education on women's right to dignity and especially their right to say "no" to sex. The stereotype of women as "mothers" makes it

Women's Anti-Discrimination Committee - 3 - Press Release WOM/976 336th Meeting (AM) 8 July 1997

difficult for them to choose other paths. In that regard, Namibia is in the process of taking steps to increase gender-sensitization in the school system. School principals have been targeted by the gender sectoral committee on education, training and employment for a series of regional gender workshops and the Department of Women's Affairs helped to facilitate a gender- sensitization workshop for government personnel involved in curriculum development.

Under Namibia's Constitution, women and men have equal rights to participate in political and public life, according to the report. They have equal right to vote, to hold office, to form associations and to practise any profession. The only legal disability facing women in that regard is the common law concept of "marital power" which forces many women to obtain their husband's permission before being able to become a trustee or director of a company. This disability would be removed by the Married Persons Equality Bill, which was before the Parliament at the time of the report's writing.

So far as the issue of nationality is concerned, Namibia's rules on nationality are completely gender-neutral, it says. In the area of education, the Namibian Constitution guarantees the right of education to all persons and makes education compulsory until the age of 16, or until the completion of primary education. Namibia now spends 10 per cent of its gross national product (GNP) on education. While nationally there are no striking gender distinctions in school enrolment, drop-out rates are higher for girls at grade-10 level. Those rates are affected by the role played by girls and boys in sharing family responsibilities.

Teenage pregnancy is a major factor in the drop-out rate for girls, the report says. In the past, pregnant schoolgirls were usually expelled. They were allowed to seek readmission at a different school after giving birth, but were not guaranteed a right to resume schooling. However, there were no negative consequences for the boys and teachers known to have impregnated the

Women's Anti-Discrimination Committee - 4 - Press Release WOM/976 336th Meeting (AM) 8 July 1997

girls. That situation will be changed by a "Policy on Pregnancy among Learners at School", currently under discussion. It proposes that pregnant schoolgirls be supported rather than punished, while recommending that serious action be taken against any teacher who engages in sexual relation with a student. In addition, population and family planning education is being integrated into primary and secondary school curricula.

The report goes on to say that the Labour Act of 1992 sets minimum working conditions, provides a framework for collective bargaining and prohibits discrimination on a number of grounds, including sex. So far as health care is concerned, Namibian women throughout the country must travel an average of 40 minutes to reach a health care facility. The overall fertility rate is one of the highest in the world and the Government is committed to reducing it through education and expanded family planning services. Abortion is illegal, except in the case of unlawful sexual intercourse (such as rape or incest) and in certain narrowly defined situations pertaining to the physical and mental health of the mother or the child.

So far as marriage is concerned, women married under civil law are subject to the "marital power" of their husbands, it says. It places a woman in a position similar to that of a minor. The husband controls all the property of the marriage and it is impossible for the woman to sign a contract without her husband's consent. Those discriminatory provisions will be removed by the proposed "Married Persons Equality Bill" before the Parliament. However, men and women also enjoy unequal rights to enter into marriage because of the practice of polygamy. The age of entry into customary marriage tends to differ in various communities. It is also influenced by the legal age of consent for sexual intercourse, which is presently 12 for girls and seven for boys, in terms of the Roman-Dutch common law inherited from South Africa at independence.

Introduction of Report

NETUMBO NDAITWAH, Director-General for Women's Affairs, Office of the President of Namibia, introducing the initial report of her country, said Namibia had acceded to the Convention, without reservations, within two years of becoming an independent nation in March 1990. Since independence the country had to cope with a society marked by a history of severe economic and social inequality based on race as well as a history of gender inequality. The time of transition had provided women with an unusual opportunity to assert demands for new rights in a fluid social and political environment. However, that also meant that women's struggle to achieve meaningful equality had to compete for attention on a crowded agenda.

The Namibian Constitution explicitly forbade discrimination on the basis of sex, she said. A non-binding section on State policy committed the

Women's Anti-Discrimination Committee - 5 - Press Release WOM/976 336th Meeting (AM) 8 July 1997

Government to enactment of legislation to ensure equality of opportunity for women to enable them to participate fully in all spheres of society. In fact, the Namibian Constitution was one of the few in the world which used gender- neutral language throughout. In addition to an independent judiciary, the Constitution provided for an Ombudsman, and a woman had been appointed to that post. However, not all the guarantees of the Constitution had been translated into practical reality thus far.

Shortly after independence, a Department of Women's Affairs had been established in the Office of the President, she said. The Department had published booklets translating the provisions of the Convention into all major Namibian languages. A draft national gender policy had been circulated in 1995 and comments had been sought from interested parties. A revised draft had been circulated recently and the policy would be finalized later in the year. The population of Namibia was predominantly rural and 30 per cent of all households were headed by women. That was partly due to the country's history of labour migration. In that context, resource ownership evidenced wide disparities between men and women, and between black and white.

So far as violence against women and children was concerned, the Government had devoted increasing attention to that problem, she said. Also, both the Constitution and the Labour Act of 1992 permitted affirmative action for women without requiring the enactment of such measures. At a recent party congress of the South-West Africa People's Organization (SWAPO), in May, the ruling party had decided to present a list ensuring a 50 per cent balance of male and female candidates for the next local elections. Since the writing of the report there had been an improvement in the proportion of women at the Cabinet level, with seven women at the minister and deputy minister level out of a total of 38. Also, Namibia's first woman judge had been appointed. While only one of Namibia's 17 foreign missions was headed by a woman, they constituted almost 43 per cent of all foreign mission staff.

She also stressed that the country's rules on nationality were completely gender-neutral. Although education was compulsory until the age of 16, drop-out rates at secondary school level were affected by the sharing of family responsibilities between girls and boys. The biggest challenge was the problem of teenage pregnancy. In the area of employment, while the labour act prohibited sex discrimination in employment, women were concentrated in occupations with low levels of remuneration, such as agriculture and domestic work. In 1994, the President had appointed a commission of inquiry into labour-related matters concerning those occupations.

Maternity benefits for women were provided through a social security act on maternity leave, sick leave and death benefits fund, she said. However, very few employers offered child care facilities at the workplace. Abortion was illegal in the country except under narrowly defined situations. In 1996,

Women's Anti-Discrimination Committee - 6 - Press Release WOM/976 336th Meeting (AM) 8 July 1997

the Ministry of Health and Social Services had circulated a draft abortion law which would liberalize the existing law, provide for abortion on demand during the first 12 weeks of pregnancy, and for a broad range of reasons at a later stage. Recently, the Ministry had announced that the new abortion law would be in place before the end of the year. The major development in the area of legal capacity since Namibia's independence was the passage of the Married Persons Equality Act, she said. The Act had been passed by Parliament with only minor technical amendments. In the past, the concept of marital power which applied to civil marriages limited the ability of women to engage in a range of financial transactions without the consent of their husbands. By the Act, couples would be required to consult each other and would have identical powers. The Act also provides for equal guardianship of children born to couples united in either civil or customary marriage. It also made the wife's domicile independent of her husband's in respect of both civil and customary marriages. The enactment of the Act meant that women married under civil law now stood on a completely equal footing with their husbands.

However, women's situation under customary law was more complex, she said. Women married under customary law were often subordinate to their husbands or to other male relatives in important aspects of life. Although portions of the Act applied to customary marriage, the Government was now developing a strategy for further law reform in respect of customary law. In addition, the Law Reform and Development Commission would examine the issue of divorce laws which were in need of reform. The problem of discrimination in inheritance under customary law would also be examined by it.

General Comments The experts congratulated the Government of Namibia for ratifying the Convention so soon after achieving independence in 1990, and without reservations. One expert described the action as "a very bold political step". The experts commended Namibia for presenting its first "well- structured" initial report within the time-frame and in a manner prescribed by the Committee. The Namibian Director-General for Women's Affairs was congratulated for her personal involvement in the preparation of Africa's regional contribution to the Beijing Fourth World Conference on Women.

The establishment of the office of the Ombudsman, headed by a woman, was praised by the experts, as were plans by the Government of Namibia to create centres for victims of child abuse. The appointment of Namibia's first woman high court judge was extremely commendable, the experts said, and hoped it would pave the way for the elevation of more women to the bench.

The experts in their general comments noted that the report had unfortunately not made any reference to any of the 22 general recommendations

Women's Anti-Discrimination Committee - 7 - Press Release WOM/976 336th Meeting (AM) 8 July 1997

relating to the Convention's articles the Committee had come out with over the years. Some noted that, despite new legislation, women still faced discrimination arising from deep-seated traditional customary laws which impeded full implementation of the Convention. One expert said those customary practices defied laws and regulations, and attempts should continually be made to eradicate them. They pointed out that the problem was not limited to Namibia alone, but affected many other African States as well. There was need for the Government to intensify its efforts to re-examine traditional roles of women and men.

Comments on Specific Articles

In their comments on article 2, which affirms that States parties must combat discrimination against women in various ways, the experts stressed the need for efforts to reconcile traditional laws with the country's constitutional provisions and legislations to remove discrimination against women. Women must be given full rights of citizenship, one expert said.

Some experts sought information on the number of women involved in the work of the country's law reform commission and how the commission operated. One expert, noting the importance of the Convention, asked how the Namibian public was made aware of its provisions. She asked whether Namibian women were restricted in any way in bringing action before the courts on rights violation and whether legal aid was provided to them. They asked whether there was adequate funding for the activities of the Department of Women's Affairs. The experts also noted the Government's obligations under the Convention to prohibit discrimination against women. They asked whether the regular courts prevailed over traditional courts in cases where women's rights were violated.

The experts also drew the attention of the Namibian authorities to the underrepresentation of women in the legal profession, stating that active steps must be taken to identify women with requisite qualifications and appoint them to the judiciary. They said that without active involvement of women in the judiciary, progress in the removal of discrimination against women might be slow.

The experts welcomed the passage of the Married Persons Equality Act, noting that while still not perfect, it could lead to advancement of women. The experts wondered how the Government intended to reconcile constitutional guarantees for women and discriminatory practices under customary law. They also would like to know how the Government intended to prepare the ground for changes in customary laws, and the steps it would take to ensure public respect of the changes.

* *** *