GENDER SCORECARD 2004
By: Opinion - (Dianne Hubbard)2004 marked the first celebration of Namibian Women's Day on 10 December, causing some men to complain because there is no Namibian Men's Day.
Get with the picture, guys - there is no need for a men's day
because it is not men who are dishonoured on most days of the year
by gender-based violence and discrimination.
The year did not see much progress in legislation for women,
although some positive gender provisions were incorporated into the
new Labour Act.
GENDER LAWS IN 2004
In March, women's groups marched to Parliament and handed over
an open letter appealing for labour law provisions prohibiting
sexual harassment and discrimination on the basis of pregnancy or
HIV status.
Women's groups also promoted special leave to deal with the
serious illness or death of close family members, as the burden of
care and responsibility in such circumstances often falls upon
women.
These appeals were not initially successful in the National
Assembly, but the National Council recommended amendments on these
points after holding a series of public hearings.
The National Assembly obliged, so the two houses working
together produced a new Labour Act which is stronger on gender
issues than ever before.
The new law was passed at the end of 2004, but has not yet come
into force.
Another law in progress which is of great interest to women is
the Children's Status Bill.
This law deals with the position of children born outside of
marriage, as well as guardianship of children whose parents have
died.
After considering concerns from women's groups about
shortcomings in the bill, the National Assembly referred it to the
Committee on Human Resources, which held some 33 hearings around
the country.
Many women expressed concern about provisions which would
automatically give custody or guardianship to absent parents, thus
including both responsible and irresponsible parents in one fell
swoop.
Many organisations argued that this approach could actually act
against the best interests of children.
A range of interested groups came together in advance of the
Parliamentary hearings for a briefing from the Legal Assistance
Centre about the bill's provisions, and the Parliamentary Committee
subsequently reported an unprecedented level of participation by
women.
A joint submission on the bill signed by 18 organisations was
submitted to the Committee, and women's groups are now eagerly
awaiting the tabling of the Committee's report.
RECENT LAWS
Women celebrated at the end of 2003 when the Maintenance Act,
the Combating of Domestic Violence Act and the Criminal Procedure
Amendment Act dealing with vulnerable witnesses all came into
force.
But this jubilation might have been somewhat premature, as the
effectiveness of some of these laws has been undermined by problems
with implementation.
For example, during 2004 the Legal Assistance Centre received
reports of serious problems with implementation of the Combating of
Domestic Violence Act.
Some people tell us that they have been turned away by public
officials who do not have the necessary forms or seem not to
understand the law - even though it has been in force for over a
year now.
The same is true of the Maintenance Act.
Spot interviews conducted by the Legal Assistance Centre with
magistrates, maintenance officers, clerks of court and attorneys
indicate that many people are still 'using' the old law - which is
no longer valid - because they are not familiar with the new
one.
The new law provides for the appointment of maintenance
investigators to assist with the tracing of parents and their
assets, but as far as we can find out, not a single maintenance
investigator has yet been appointed in Namibia.
The Boois case, which took place prior to the vulnerable witness
reforms, overturned a rape conviction involving a 10-year-old
victim - largely because of technical problems which the recent
legal changes should alleviate.
But we do not yet have sufficient feedback to assess the
effectiveness of the new rules on testimony by children.
Implementation of the Communal Land Reform Act which provides
for more secure land tenure for widows is still gearing up and must
be assessed as time goes by.
Speaking in Parliament during the debate on the domestic
violence law, Hon Kawana stated that "there will be a need for more
training; for specialisation; for sufficient staff and other
resources; as well as improved social services and medical
facilities".
We could not agree more.
Passing new laws on gender issues is not the end of the road -
in most cases it is just the first step.
PROTOCOL ON RIGHTS
On 26 August 2004, Namibia became one of only five members of
the African Union to ratify the Protocol to the African Charter on
the Rights of Women in Africa.
The Protocol takes a strong stand on violence against women and
condemns all "harmful practices" against women and girls --
including "all behaviour, attitudes and/or practices which
negatively affect the fundamental rights of women and girls".
The Protocol stops short of prohibiting polygamy, but it states
that "monogamy is encouraged as the preferred form of marriage.''
Men and women are to be regarded as "equal partners in marriage",
and women are promised the right during marriage to acquire their
own property and to administer and manage it freely.
Men and women are also promised the same rights to seek
divorce.
If a divorce takes place, "the interests of the children shall
be given paramount importance" and the joint property of the
marriage is to be shared "equitably".
There is a specific section on widows' rights.
States parties are expected to take legal measures to prohibit
"inhuman, humiliating or degrading treatment" of widows.
More specifically, a widow shall automatically become the
guardian and custodian of her children after the death of her
husband (unless this is for some reason contrary to the welfare and
interests of the children).
A widow also has the right to remarry the person of her
choice.
The accompanying section on inheritance says that a widow shall
have the right to continue to live in the matrimonial house,
although this right continues upon remarriage only if the house
belongs to her or if she has inherited it.
Furthermore, a widow has a right to "an equitable share in the
inheritance of the property of the husband".
On inheritance generally, the Protocol says that "women and men
shall have the right to inherit, in equitable shares, their
parents' properties".
Also notable is the Protocol's strong section on health, which
explicitly promises women the right to control their fertility, to
decide on whether and when to have children, to choose any method
of contraception and to receive family planning education.
A particularly important provision guarantees "the right to self
protection and to be protected against sexually transmitted
infections, including HIV/AIDS".
Women have a right to be informed of their own health status and
the health status of their partners, within the context of
internationally recognised standards and best practices on
confidentiality and disclosure.
The Protocol is a grand and ringing statement of women's rights
in Africa.
It will become binding on individual states after the 15th
ratification.
However, as with so many grand and ringing statements of rights,
the real question will be whether the Protocol is observed in
practice.
COURT CASES
The most interesting court case for women this year comes not
from Namibia but from South Africa.
In the landmark Bhe case, the South African Constitutional Court
found that the customary law rules on inheritance unfairly
discriminate against women.
The court ordered that the estates of black persons in South
Africa must be distributed in the same way as the estates of any
other person who dies without a will - with appropriate adjustments
for polygamous marriages -- until Parliament comes up with a better
solution to the problem.
So in South Africa, the Constitutional promise of sexual
equality has been found to overrule customary law on
inheritance.
Because Namibia's Constitution is similar to South Africa's on
this point, the Bhe case could be a signpost to our future.
Back in Namibia, the Lopez case decided in late 2003 dealt with
marital rape.
A husband was found guilty of raping his estranged wife after he
forced her into his car and drove her to a deserted area.
On appeal, his sentence was reduced from ten years to five
years.
One of the "substantial and compelling grounds" cited by the
court for reducing the sentence was that "it must be accepted that
the complainant, as the appellant's wife of some years is no
stranger to having sexual intercourse with him".
One wonders - is it more traumatising to be raped by a stranger
or by a man you once loved and trusted? In a notorious domestic
violence case, defendant Sean Burger was sentenced to a total of 20
years in prison for knifing an ex-girlfriend to death.
According to the judge, a total of 20 wounds were inflicted,
with the accused repeatedly replacing the knives as they broke.
This case is, sadly, not unique.
A full survey of the cases involving violence against women and
children this year would fill pages.
POSITION OF WOMEN
Everyday life is not looking very rosy for women in Namibia.
Violence against women seems to be on the upswing, in spite of
the new laws aimed at combating it.
For example, the number of reported rapes appears to be rising,
with alarming numbers of children both being raped and committing
rapes.
An assessment of male-partner violence published by the Ministry
of Health & Social Services in November 2004, based on a survey
of 1500 women in Windhoek, contains the shocking finding that that
1 out of 3 women who have been in a relationship with a man have
been physically or sexually abused at some stage.
And 1 out of 5 women surveyed were experiencing abuse from their
male partners at the time of the study.
The study concludes that "male perceptions of gender roles and
male entitlements are at the core of violence against women, and
major and intensive intervention should be directed towards the
socialisation, education and also 'empowerment' of men, to take the
lead in addressing family violence in general and intimate partner
violence in particular".
On the labour front, a study recently released by the Labour
Resource and Research Institute found that males - and particularly
white males - still dominate senior and middle management.
Women have made some gains at the level of skilled workers, but
even here the advances made by black males outstripped those by
black females.
The 2004 elections produced mixed results for women.
Women continued to make strides forwards at the local level,
where legal provisions in the Local Authorities Act make sure that
women have places on the party list.
The local elections held in May resulted in women increasing
their presence from 41,3% to 43,4%, holding 123 out of 283
seats.
But women lost some ground in the National Assembly.
Only 18 women are amongst the 72 new members, which constitutes
25% of the membership -- down from 19 women seated after the 1999
elections, which was 26.3 % of the total.
Only COD and UDF placed a zebra arrangement of candidates in
Parliament, and both of these party lists began with men.
Swapo has only 15 women amongst its 55 representatives.
President Nujoma's personal support for women continued to be
strong, with 6 women amongst the 10 persons selected by the
President to head the party list - but there were only 9 other
women amongst the additional 45 persons on the Swapo list who made
it into the National Assembly.
If all 6 non-voting members of Parliament appointed by
President-elect Pohamba are women, this will allow Namibia to
squeak by the modest SADC goal of 30% female representation -- but
this will not hide the fact that gender imbalances in positions of
power still pose a challenge to Swapo.
The problem is not likely to improve unless Swapo adapts its
internal procedures to accommodate zebra lists of candidates, as
the ANC has done in South Africa.
In the subsequent regional elections, there were only 12 women
amongst the 107 persons elected to fill seats on the 13 regional
councils, for a total of 11.2 %.
Six of the 13 regions have no women at all on their regional
councils, although the Khomas region bucked this trend with 6 women
amongst its 10 councillors.
The gender balance is better in the new National Council, where
7 out of the 26 new members are women (almost 27%).
Parliamentary discourse continued to include some outrageous
claims about women, although disparaging remarks about women seemed
to be less well-received now than in the past.
For example, when one male Parliamentarian recently claimed that
there was no such thing as forced sex within marriage, his
misperception was corrected by both male and female colleagues.
Perhaps the most bizarre gender debate in Parliament during 2004
was on the question of whether a future President might have more
than one spouse - which would affect the cost of the Presidential
retirement package.
Several female Parliamentarians insisted that this would be
inappropriate and even unconstitutional, but some of their male
colleagues maintained that it would be entirely acceptable.
Is anything getting better for women? Well, it seems that women
are speaking out more and more.
For example, in Swakopmund women handed over a petition to the
local magistrate in July demanding reforms in the system for
distributing monthly maintenance payments.
In September, members of Women's Action for Development in
Rehoboth petitioned local authorities to force shebeens and liquor
stores to abide by the liquor laws.
And in Omaruru, women marched to the magistrate's court to call
for life sentences for men who commit violence against women.
It seems clear that Namibian women will no longer allow their
interests and concerns to be ignored.
WHAT LIES AHEAD
The Law Reform and Development Commission recently recommended
the repeal of the part of the "Native Administration Proclamation
15 of 1928" which makes civil marriages between blacks north of the
old Police Zone automatically out of community of property, in
contrast to the rest of the nation where such marriages are
automatically in community of property.
The Law Reform and Development Commission is expected to publish
reports early in the new year which will recommend an overhaul of
Namibia's antiquated divorce laws, as well as a new regime for the
official recognition and regulation of customary marriages.
The Children's Status Bill should move forward in
Parliament.
It will hopefully be joined by the long-awaited Child Care and
Protection Bill, which will reform procedures to protect abused and
neglected children and adjust Namibia's framework for adoption.
The big question is whether or not Namibia will take the bull by
the horns and address the thorny question of inheritance.
Will the government initiate law reform on this point, or will
it wait until a court case forces it to take action (as in South
Africa)? Reconciling the Constitutional promises of gender equality
with respect for local culture and customary law is challenging,
but not impossible.
AND IN CONCLUSION….
A survey of attitudes about law reform and gender equality
carried out by UNAM's Gender Training and Research Unit (reported
in Beijing +10: The way forward, Namibian Institute for Democracy
in February 2004) documented some resistance to changes in gender
roles at grassroots level.
For example, one 44-year-old man said that women now see men as
their enemies, while a 39-year-old man said that women's rights are
used to undermine men.
These are commonly-held perceptions, particularly in rural
areas.
There is a long way to go before Namibian men look past the
mistaken idea that gender equality heralds a battle between the
sexes, to see that it can transform relationships to produce a new
and positive kind of partnership between men and women.
And so, as a parting thought for the coming year:
Q. How many feminists does it take to change a lightbulb?
A. None. It's not the lightbulb that needs changing.
* This annual analysis of developments in gender and the law is
written by Dianne Hubbard, Coordinator of the Gender Research &
Advocacy Project at the Legal Assistance Centre.
The year did not see much progress in legislation for women,
although some positive gender provisions were incorporated into the
new Labour Act. GENDER LAWS IN 2004 In March, women's groups
marched to Parliament and handed over an open letter appealing for
labour law provisions prohibiting sexual harassment and
discrimination on the basis of pregnancy or HIV status.Women's
groups also promoted special leave to deal with the serious illness
or death of close family members, as the burden of care and
responsibility in such circumstances often falls upon women.These
appeals were not initially successful in the National Assembly, but
the National Council recommended amendments on these points after
holding a series of public hearings.The National Assembly obliged,
so the two houses working together produced a new Labour Act which
is stronger on gender issues than ever before.The new law was
passed at the end of 2004, but has not yet come into force.Another
law in progress which is of great interest to women is the
Children's Status Bill.This law deals with the position of children
born outside of marriage, as well as guardianship of children whose
parents have died. After considering concerns from women's groups
about shortcomings in the bill, the National Assembly referred it
to the Committee on Human Resources, which held some 33 hearings
around the country.Many women expressed concern about provisions
which would automatically give custody or guardianship to absent
parents, thus including both responsible and irresponsible parents
in one fell swoop.Many organisations argued that this approach
could actually act against the best interests of children.A range
of interested groups came together in advance of the Parliamentary
hearings for a briefing from the Legal Assistance Centre about the
bill's provisions, and the Parliamentary Committee subsequently
reported an unprecedented level of participation by women.A joint
submission on the bill signed by 18 organisations was submitted to
the Committee, and women's groups are now eagerly awaiting the
tabling of the Committee's report. RECENT LAWS Women celebrated at
the end of 2003 when the Maintenance Act, the Combating of Domestic
Violence Act and the Criminal Procedure Amendment Act dealing with
vulnerable witnesses all came into force.But this jubilation might
have been somewhat premature, as the effectiveness of some of these
laws has been undermined by problems with implementation.For
example, during 2004 the Legal Assistance Centre received reports
of serious problems with implementation of the Combating of
Domestic Violence Act.Some people tell us that they have been
turned away by public officials who do not have the necessary forms
or seem not to understand the law - even though it has been in
force for over a year now.The same is true of the Maintenance
Act.Spot interviews conducted by the Legal Assistance Centre with
magistrates, maintenance officers, clerks of court and attorneys
indicate that many people are still 'using' the old law - which is
no longer valid - because they are not familiar with the new
one.The new law provides for the appointment of maintenance
investigators to assist with the tracing of parents and their
assets, but as far as we can find out, not a single maintenance
investigator has yet been appointed in Namibia.The Boois case,
which took place prior to the vulnerable witness reforms,
overturned a rape conviction involving a 10-year-old victim -
largely because of technical problems which the recent legal
changes should alleviate.But we do not yet have sufficient feedback
to assess the effectiveness of the new rules on testimony by
children. Implementation of the Communal Land Reform Act which
provides for more secure land tenure for widows is still gearing up
and must be assessed as time goes by.Speaking in Parliament during
the debate on the domestic violence law, Hon Kawana stated that
"there will be a need for more training; for specialisation; for
sufficient staff and other resources; as well as improved social
services and medical facilities".We could not agree more.Passing
new laws on gender issues is not the end of the road - in most
cases it is just the first step. PROTOCOL ON RIGHTS On 26 August
2004, Namibia became one of only five members of the African Union
to ratify the Protocol to the African Charter on the Rights of
Women in Africa.The Protocol takes a strong stand on violence
against women and condemns all "harmful practices" against women
and girls -- including "all behaviour, attitudes and/or practices
which negatively affect the fundamental rights of women and girls".
The Protocol stops short of prohibiting polygamy, but it states
that "monogamy is encouraged as the preferred form of marriage.''
Men and women are to be regarded as "equal partners in marriage",
and women are promised the right during marriage to acquire their
own property and to administer and manage it freely.Men and women
are also promised the same rights to seek divorce.If a divorce
takes place, "the interests of the children shall be given
paramount importance" and the joint property of the marriage is to
be shared "equitably".There is a specific section on widows'
rights.States parties are expected to take legal measures to
prohibit "inhuman, humiliating or degrading treatment" of
widows.More specifically, a widow shall automatically become the
guardian and custodian of her children after the death of her
husband (unless this is for some reason contrary to the welfare and
interests of the children).A widow also has the right to remarry
the person of her choice.The accompanying section on inheritance
says that a widow shall have the right to continue to live in the
matrimonial house, although this right continues upon remarriage
only if the house belongs to her or if she has inherited
it.Furthermore, a widow has a right to "an equitable share in the
inheritance of the property of the husband". On inheritance
generally, the Protocol says that "women and men shall have the
right to inherit, in equitable shares, their parents'
properties".Also notable is the Protocol's strong section on
health, which explicitly promises women the right to control their
fertility, to decide on whether and when to have children, to
choose any method of contraception and to receive family planning
education.A particularly important provision guarantees "the right
to self protection and to be protected against sexually transmitted
infections, including HIV/AIDS".Women have a right to be informed
of their own health status and the health status of their partners,
within the context of internationally recognised standards and best
practices on confidentiality and disclosure.The Protocol is a grand
and ringing statement of women's rights in Africa.It will become
binding on individual states after the 15th ratification.However,
as with so many grand and ringing statements of rights, the real
question will be whether the Protocol is observed in practice.
COURT CASES The most interesting court case for women this year
comes not from Namibia but from South Africa.In the landmark Bhe
case, the South African Constitutional Court found that the
customary law rules on inheritance unfairly discriminate against
women.The court ordered that the estates of black persons in South
Africa must be distributed in the same way as the estates of any
other person who dies without a will - with appropriate adjustments
for polygamous marriages -- until Parliament comes up with a better
solution to the problem.So in South Africa, the Constitutional
promise of sexual equality has been found to overrule customary law
on inheritance.Because Namibia's Constitution is similar to South
Africa's on this point, the Bhe case could be a signpost to our
future.Back in Namibia, the Lopez case decided in late 2003 dealt
with marital rape.A husband was found guilty of raping his
estranged wife after he forced her into his car and drove her to a
deserted area.On appeal, his sentence was reduced from ten years to
five years.One of the "substantial and compelling grounds" cited by
the court for reducing the sentence was that "it must be accepted
that the complainant, as the appellant's wife of some years is no
stranger to having sexual intercourse with him".One wonders - is it
more traumatising to be raped by a stranger or by a man you once
loved and trusted? In a notorious domestic violence case, defendant
Sean Burger was sentenced to a total of 20 years in prison for
knifing an ex-girlfriend to death.According to the judge, a total
of 20 wounds were inflicted, with the accused repeatedly replacing
the knives as they broke.This case is, sadly, not unique.A full
survey of the cases involving violence against women and children
this year would fill pages. POSITION OF WOMEN Everyday life is not
looking very rosy for women in Namibia.Violence against women seems
to be on the upswing, in spite of the new laws aimed at combating
it.For example, the number of reported rapes appears to be rising,
with alarming numbers of children both being raped and committing
rapes.An assessment of male-partner violence published by the
Ministry of Health & Social Services in November 2004, based on
a survey of 1500 women in Windhoek, contains the shocking finding
that that 1 out of 3 women who have been in a relationship with a
man have been physically or sexually abused at some stage.And 1 out
of 5 women surveyed were experiencing abuse from their male
partners at the time of the study.The study concludes that "male
perceptions of gender roles and male entitlements are at the core
of violence against women, and major and intensive intervention
should be directed towards the socialisation, education and also
'empowerment' of men, to take the lead in addressing family
violence in general and intimate partner violence in particular".On
the labour front, a study recently released by the Labour Resource
and Research Institute found that males - and particularly white
males - still dominate senior and middle management.Women have made
some gains at the level of skilled workers, but even here the
advances made by black males outstripped those by black females.The
2004 elections produced mixed results for women.Women continued to
make strides forwards at the local level, where legal provisions in
the Local Authorities Act make sure that women have places on the
party list.The local elections held in May resulted in women
increasing their presence from 41,3% to 43,4%, holding 123 out of
283 seats.But women lost some ground in the National Assembly.Only
18 women are amongst the 72 new members, which constitutes 25% of
the membership -- down from 19 women seated after the 1999
elections, which was 26.3 % of the total.Only COD and UDF placed a
zebra arrangement of candidates in Parliament, and both of these
party lists began with men.Swapo has only 15 women amongst its 55
representatives.President Nujoma's personal support for women
continued to be strong, with 6 women amongst the 10 persons
selected by the President to head the party list - but there were
only 9 other women amongst the additional 45 persons on the Swapo
list who made it into the National Assembly. If all 6 non-voting
members of Parliament appointed by President-elect Pohamba are
women, this will allow Namibia to squeak by the modest SADC goal of
30% female representation -- but this will not hide the fact that
gender imbalances in positions of power still pose a challenge to
Swapo.The problem is not likely to improve unless Swapo adapts its
internal procedures to accommodate zebra lists of candidates, as
the ANC has done in South Africa. In the subsequent regional
elections, there were only 12 women amongst the 107 persons elected
to fill seats on the 13 regional councils, for a total of 11.2
%.Six of the 13 regions have no women at all on their regional
councils, although the Khomas region bucked this trend with 6 women
amongst its 10 councillors.The gender balance is better in the new
National Council, where 7 out of the 26 new members are women
(almost 27%).Parliamentary discourse continued to include some
outrageous claims about women, although disparaging remarks about
women seemed to be less well-received now than in the past.For
example, when one male Parliamentarian recently claimed that there
was no such thing as forced sex within marriage, his misperception
was corrected by both male and female colleagues.Perhaps the most
bizarre gender debate in Parliament during 2004 was on the question
of whether a future President might have more than one spouse -
which would affect the cost of the Presidential retirement
package.Several female Parliamentarians insisted that this would be
inappropriate and even unconstitutional, but some of their male
colleagues maintained that it would be entirely acceptable.Is
anything getting better for women? Well, it seems that women are
speaking out more and more.For example, in Swakopmund women handed
over a petition to the local magistrate in July demanding reforms
in the system for distributing monthly maintenance payments.In
September, members of Women's Action for Development in Rehoboth
petitioned local authorities to force shebeens and liquor stores to
abide by the liquor laws.And in Omaruru, women marched to the
magistrate's court to call for life sentences for men who commit
violence against women.It seems clear that Namibian women will no
longer allow their interests and concerns to be ignored. WHAT LIES
AHEAD The Law Reform and Development Commission recently
recommended the repeal of the part of the "Native Administration
Proclamation 15 of 1928" which makes civil marriages between blacks
north of the old Police Zone automatically out of community of
property, in contrast to the rest of the nation where such
marriages are automatically in community of property.The Law Reform
and Development Commission is expected to publish reports early in
the new year which will recommend an overhaul of Namibia's
antiquated divorce laws, as well as a new regime for the official
recognition and regulation of customary marriages.The Children's
Status Bill should move forward in Parliament.It will hopefully be
joined by the long-awaited Child Care and Protection Bill, which
will reform procedures to protect abused and neglected children and
adjust Namibia's framework for adoption.The big question is whether
or not Namibia will take the bull by the horns and address the
thorny question of inheritance.Will the government initiate law
reform on this point, or will it wait until a court case forces it
to take action (as in South Africa)? Reconciling the Constitutional
promises of gender equality with respect for local culture and
customary law is challenging, but not impossible. AND IN
CONCLUSION…. A survey of attitudes about law reform and
gender equality carried out by UNAM's Gender Training and Research
Unit (reported in Beijing +10: The way forward, Namibian Institute
for Democracy in February 2004) documented some resistance to
changes in gender roles at grassroots level.For example, one
44-year-old man said that women now see men as their enemies, while
a 39-year-old man said that women's rights are used to undermine
men.These are commonly-held perceptions, particularly in rural
areas.There is a long way to go before Namibian men look past the
mistaken idea that gender equality heralds a battle between the
sexes, to see that it can transform relationships to produce a new
and positive kind of partnership between men and women.And so, as a
parting thought for the coming year: Q. How many feminists does it
take to change a lightbulb? A. None. It's not the lightbulb that
needs changing.* This annual analysis of developments in gender and
the law is written by Dianne Hubbard, Coordinator of the Gender
Research & Advocacy Project at the Legal Assistance Centre.