Convention
Abbreviation:
CAT
COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
Namibia
227. The Committee considered the initial report of Namibia (CAT/C/28/Add.2)
at its 293rd and 294th meetings, on 6 May 1997 (CAT/C/SR.293 and 294/Add.1),
and adopted the following conclusions and recommendations.
1. Introduction
228. The Committee thanks the State party for submitting the initial
report and for its responses to the questions and concerns expressed
by the Committee.
2. Positive
aspects
229. The Committee welcomes the goodwill shown by Namibia in its accession
to the Convention against Torture and other instruments of international
human rights and humanitarian law.
230. The Committee welcomes the Government's growing awareness of
the importance of human rights, as demonstrated by the fact that the
Government now permits non-governmental organizations and diplomatic
officers regular access to prisons and prisoners and that local non-governmental
organizations operate freely, dealing openly with a variety of human
rights issues.
231. The Committee expresses its satisfaction with the explicit proclamation
in the Namibian Constitution that no person shall be subjected to
torture or cruel, inhuman or degrading treatment or punishment and
that testimony obtained under torture is not admissible as evidence
in a Namibian court of law.
232. The Committee welcomes the improvement in Namibia's asylum and
refugee policy according to which asylum seekers from other African
countries are permitted to enter the country and are granted refugee
status.
3. Factors and
difficulties impeding the application of the
provisions of the Convention
233. The Committee is aware that Namibia, which only became an independent
State in 1990, is confronted with the legacy of the pre-independence
period which hinders desirable efforts to fully harmonize the Namibian
legal order with the requirements of international humanitarian law
instruments.
234. The Committee has tried to take this fact into consideration
in formulating its conclusions and recommendations. However, it must
be emphasized that no exceptional circumstances can ever provide a
justification for failure to comply with certain terms of the Convention
against Torture.
4. Subjects
of concern
235. The Committee is concerned that Namibia has not integrated, as
required by articles 2 (1) and 4 (1) of the Convention, the specific
definition of the crime of torture into its penal legislation in terms
legally consistent with the definition contained in article 1 of the
Convention. In the absence of a strict legal definition of torture
and other offences and of a precise description of appropriate and
corresponding punishment for torture and other offences, it is impossible
for the Namibian courts to adhere to the principle of legality (nullum
crimen, nulla poena sine lege previa) and to article 4 of the
Convention.
236. The Committee is also concerned about the alleged cases of torture
referred to specifically during the discussion of the State party's
report.
237. The Committee deeply regrets that in many cases, because of the
lack of judicial personnel, pre-trial detention extends for up to
one year.
238. The Committee is concerned that although torture and physical
assaults by the Namibian police have been reduced considerably since
independence, treatment which falls under the category of torture
or cruel, inhuman or degrading treatment or punishment still occurs
in certain areas of the country.
239. The Committee is also concerned at the State party's failure
in many cases to promptly and impartially investigate and prosecute
those responsible for past and present acts of torture or cruel, inhuman
or degrading treatment. Namibia also fails to institute consistently
disciplinary proceedings against public officials responsible for
acts of torture or ill-treatment.
240. The Committee expresses concern that there are no legal instruments
to deal specifically with compensating victims of torture or other
ill-treatment. The existing procedures for obtaining redress, compensation
and rehabilitation seem to be inadequate and in many cases ineffective.
Moreover, they limit the right to redress and compensation to the
victim of torture, failing to give, in accordance with article 14
(1) of the Convention, the same standing to the deceased victim's
dependants.
5. Recommendations
241. Namibia should enact a law defining the crime of torture in terms
of article 1 of the Convention and should legally integrate this definition
into the Namibian substantive and procedural criminal law system,
taking especially into account: (a) the need to define torture as
a specific offence committed by or at the instigation of or with the
consent of a public official (delictum proprium) with the special
intent to extract a confession or other information, to arbitrarily
punish, to intimidate, to coerce or to discriminate; (b) the need
to legislate for complicity in torture and attempts to commit torture
as equally punishable; (c) the need to exclude the legal applicability
of all justification in cases of torture; (d) the need to exclude
procedurally all evidence obtained by torture in criminal and all
other proceedings except in proceedings against the perpetrator of
torture himself; and (e) the need to legislate for and enforce prompt
and impartial investigation into any substantiated allegations of
torture.
242. Namibia should enact laws, particularly prohibiting torture,
as required under the Convention against Torture and other human rights
agreements binding on Namibia, in fields that are not yet regulated.
Existing national laws should be further reviewed in the light of
the Convention and protection of human rights in general.
243. Education of members of the Police Department, the National Defence
Force, the Prisons Service, other law enforcement personnel and medical
officers regarding the prohibition of torture and other cruel, inhuman
and degrading treatment should be fully included in their training,
in accordance with article 10 of the Convention, with special emphasis
on the definition of torture as contained in article 1 of the Convention
and also emphasizing the criminal liability of those who commit acts
of torture.
244. Independent governmental bodies consisting of persons of high
moral standing should be appointed to take over the inspection of
detention centres and places of imprisonment. The Government should
also establish an independent authority to deal with complaints against
members of the Police Department.
245. The Government should introduce measures to reduce the accumulation
of criminal cases resulting in long and illegal pre-trial detention,
which violates the right of defendants to be tried within a reasonable
time.
246. The Government should provide the Office of the Ombudsman with
the personnel and financial means to exercise its functions in the
field of protection of human rights, as foreseen by the Namibian Constitution.
247. The Committee recommends that the specific allegations of ill-treatment
which have been brought to its attention be investigated and that
the results of such investigations be transmitted to the Committee.
The Committee also recommends that the cases of disappearance of former
members of the South West Africa People's Organization (SWAPO) be,
according to article 12 of the Convention, promptly and impartially
investigated. In all situations where reasonable grounds exist to
believe that those disappearances amounted either to torture or to
other forms of cruel, inhuman or degrading treatment, the dependants
of the deceased victims should, according to article 14 of the Convention,
be afforded fair and adequate compensation. The perpetrators of those
acts should be brought to justice.
248. Traditional leaders in community courts in Namibia should either
be effectively made to comply with the legal limits of their power
to order pre-trial detainment of suspects or they should be stripped
of their power to order such pre-trial detention.
249. The Namibian authorities should institute proper procedures in
order to comply with article 3 of the Convention, i.e. to enable refugees
to apply for residence in cases where substantial grounds exist for
believing that they would be in danger of being subjected to torture
if expelled, returned or extradited to another country.
250. The Committee recommends the prompt abolition of corporal punishment
insofar as it is legally still possible under the Prisons Act of 1959
and the Criminal Procedure Act of 1977.
251. The Committee recommends that victims of torture in Namibia be
given standing to institute, apart from civil action for damages,
criminal procedures against the perpetrators of torture.
252. In view of the normal separation of disciplinary proceedings
from criminal procedure, the Committee considers the legal dependence
in Namibia of disciplinary proceedings against the perpetrator of
torture upon the outcome of criminal proceedings as unnecessary.
