CONSTITUTIONAL AND HUMAN RIGHTS UNIT (CHRU) ANNUAL REPORT 2000

Transcription

1 LEGAL ASSISTANCE CENTRE CONSTITUTIONAL AND HUMAN RIGHTS UNIT (CHRU) ANNUAL REPORT 2000 INTRODUCTION The year under review has been an extremely volatile one for the human rights situation in Namibia. When put to the test, the Government in particular the Ministry of Home Affairs and the Ministry of Defence has sadly fallen far short of the ideals set out in the Namibian Constitution. The catalyst appears to have arisen from a few identifiable sources, namely the secessionist attacks in the Caprivi Region on 2 August 1999, the continued violence in the north-east of Namibia and the question of the rights of refugees. When the courts were approached in an attempt to protect the rights of persons accused of high treason, the Minister of Home Affairs reacted with extreme vehemence and intolerance. Verbal attacks were made against human rights organisations and defenders and also against the media. At one stage CHRU lawyer Clinton Light was even slated as a subversive. When the court made an order in the Osire Stars matter (see below) which was not to the liking of the Minister of Home Affairs, this Minister launched a further attack against the presiding judicial officer and on so-called foreign judges in particular. Although the issue was ostensibly resolved with apologies apparently being made, it could be said that this is the beginning of an underlying apparent disregard for the independence of the judiciary. This can be further evidenced by this Ministry s refusal to release a certain J Sikunda (a matter which has been widely reported on in the press) despite an order from the court stating that he must be released. In the present circumstances it is more important now than ever that the LAC should be steadfast in its commitment to ensuring and enforcing, by litigation or otherwise, the constitutional rights of all persons in Namibia. STAFF DEVELOPMENTS Tenu Avafia and Gerson Narib joined the LAC at the beginning of the year as candidate legal practitioners. Tenu and Gerson will remain in the CHRU until the end of Delme Cupido passed the Legal Practitioners Qualifying Examination and will be admitted as a legal practitioner in the near future. He has been appointed as the junior legal practitioner of the CHRU. Ruusa Shipiki was an intern at the Legal Resources Centre (LRC) in Johannesburg from 16 March 2000 to 9 April 2000, funded by the Canadian Bar Association. Ruusa worked under the supervision of Ms Kameshni Pillay, the national co-ordinator of the LRC Woman s Project. Ruusa did research on a case concerned with a woman s right to inherit from her long-term partner, who was not married to her partner by either customary or civil marriage. In September 2000 Delme Cupido was invited to serve an internship at the LRC in Cape Town for a period of six weeks. While there he worked in the Land Unit.

2 LAC Constitutional and Human Rights Unit (CHRU) Annual Report STAFF CHANGES Clinton Light left the CHRU at the end of September 2000 to take up residence in New Zealand. He is wished all good fortune in his future endeavours. He was replaced as senior legal practitioner and CHRU co-ordinator by Toni Hancox. Ruusa Shipiki has moved to the LAC s AIDS Law Unit where we are sure she will keep up the good work, and she is wished the very best of luck. Two further candidate legal practitioner posts have been advertised for the year 2001 and interviews should commence shortly. LITIGATION The CHRU closed 90 files during the period under review. At present the unit is dealing with a further 230 matters. The figures may contain a margin of inaccuracy due to the move of members from the CHRU to other LAC units/projects. The finer details are still being finalised in the computer system. Only the more significant or interesting cases are mentioned below. Constitutional Rights / Human Rights Detention and torture of alleged Caprivi secessionists By far the bulk of the CHRU s work at this stage relates to the detention and torture of the alleged Caprivi secessionists. The LAC now acts for 136 persons who were arrested following the secessionist attacks in the Caprivi Region on 2 August More cases are being identified as time goes by and as the aggrieved parties become aware of their rights and of how the LAC can assist them. Mainly members of the Namibian Police (Nampol) and in a few cases members of the Namibian Defence Force (NDF) allegedly tortured more than 100 of our clients. Our client number increased from approximately 40 last year to the present number, following three visits during May and June 2000 by members of the CHRU to Grootfontein Prison. Most of our clients are being detained on treason charges and have been refused bail. The torture method most commonly used was sjambokking [Afrikaans for flogging with a long stiff whip, i.e. a sjambok ]. Sensory deprivations techniques were also frequently used, for example blindfolding prisoners, in some cases for days or weeks, or requiring prisoners to stand or sit with their hands above their heads against a wall for long periods of time. During August 1999 the Minister of Defence, Erkki Nghimtina, visited the area. He admitted that the security forces had committed human rights abuses and promised that they would not continue. The abuses continued but it appears that more sophisticated methods where then used which did not leave such obvious marks. For example, batons rather then sjamboks were more commonly used later in August and in the following months. The marks left by batons are not as visible as those left by sjamboks. In almost all cases prisoners did not receive medical treatment until they had been moved from Katima Mulilo Police Station, often only two to three weeks later. Photographs taken a few weeks after the torture document the genuineness of many of these cases. In most cases scars caused by a sjambok are still visible today. On 20 August 1999 and in writing, the LAC requested the Nampol Inspector-General to investigate the assault of the Caprivi emergency detainees and further requested that criminal charges be laid

3 LAC Constitutional and Human Rights Unit (CHRU) Annual Report and thoroughly investigated against those implicated. As a result, Nampol Deputy Commissioner Visser was appointed to investigate criminal offences against members of Nampol implicated in the assault of our clients. We understand that Nampol completed the investigation in March The normal procedure is that the criminal investigation docket is then submitted to the Prosecutor-General for a decision on criminal prosecution. This did not happen here. It was reported in The Namibian (daily newspaper) on 29 March 2000 that the dockets had instead been handed to the NDF. According to the report, NDF legal advisor Colonel Kavungo is quoted as saying that [The NDF will] handle the Caprivi torture cases using its internal disciplinary mechanisms because at the time of the alleged torture there was a state of emergency administered by the army, and further that Defence has its own jurisdiction, its own type of courts and its own way of handling disciplinary matters. We don t need to send our cases to the Prosecutor-General. The LAC thereafter assisted Geoffrey Mwilima, who was also savagely tortured in August 1999, to bring a High Court application ordering that the dockets be handed over to the Prosecutor-General. The Government first opposed the application but later conceded that the dockets should be delivered to the Prosecutor-General, albeit contending that Nampol should be given more time to investigate the charges. We were informed during July 2000 that the dockets had eventually been handed over to the Deputy Prosecutor-General in Rundu. We still await a full list of the complainants from the Prosecutor- General in order to ensure that all our clients who wish to lay charges have in fact done so. In conclusion, the Caprivi litigation takes up much of the CHRU s time. Each case must be treated individually as their merits differ, and in this respect the assistance of everyone in the CHRU has been invaluable. The Government had until the end of November 2000 to file its pleas, whereafter pre-trial proceedings would commence. Persona non grata In a related matter, the LAC recently launched an urgent application on behalf of Raphael Sikunda and four others which relates to a list issued by the Minister of Home Affairs purporting to declare certain foreign nationals as persona non grata and requesting the UNHCR to relocate these persons to other countries. Mr Sikunda s father is also on this list and although the LAC is not acting on his behalf, it was his arbitrary arrest and continued detention despite a court order ordering his release that prompted the LAC to act on behalf of his son and four others. The applicants fear that pursuant to their appearance on this Home Affairs list, they too will be detained and deported. Two of the applicants are Namibian citizens who have lived in Namibia for over 40 years. Mr Sikunda (jnr) has permanent residence and the other two applicants have been afforded refugee status in Namibia. The Government indicated that it wished to settle this application on the basis of giving an undertaking that clients will not be arrested, detained or deported until the matter is finalised. This settlement has now materialised and the urgent application will not proceed. An application to review the decisions of both the Minister of Home Affairs and the Security Commission to place applicants on the list of foreign nationals declared persona non grata has also been brought. At this stage the Government Attorney has informed us that their clients are investigating the matter and will thereafter revert to us. It is expected that this application will be opposed. Chaining of prisoners in leg irons or chains On 9 July 1999 the Supreme Court ruled as unconstitutional the chaining of prisoners in leg irons or chains. Pursuant to this judgement the LAC attempted to settle the civil claims of 16 prisoners who were claiming damages for being placed in leg irons or chains. The Government refused to settle as it was contended that the prisoners causes of action arose before the ruling of the Supreme Court, at

4 LAC Constitutional and Human Rights Unit (CHRU) Annual Report which time the practice of chaining was still allowed by the Prisons Act. The first of these 16 matters went to trial in October Acting on the contention of the Government, the court immediately requested that only argument on the issue of whether the Government is indeed liable would initially be heard. Thereafter a ruling was made that the Government was liable and only the issue of quantum had to be decided. Unless the Government appeals this decision (although we cannot see on what basis) the door is now open for the other 15 matters to be settled without us having to take each and every matter to trial. We have nonetheless obtained trial dates and set the matters down in an attempt to pressurise the Government into an early settlement. Access to justice In a matter relating to access to justice and the financial implications thereof, the LAC is acting on behalf of Mrs Ellen Louw, who is effectively being barred from proceeding with an appeal in the High Court as she is unable to furnish security for the costs of such appeal. It is contended on behalf of the applicant that Rule 49(13) of the Rules of the High Court, which directs that security for costs of appeal shall be furnished, is unconstitutional in that it affords the Registrar of the High Court the discretion to determine what amount shall be payable, and furthermore states that the Registrar s decision shall be final. This rule discriminates against persons on the ground of their economic status and also denies them access to justice. This is not allowed in terms of the Namibian Constitution. The Court has also been requested to waive security for costs of appeal in the case of the applicant as a deserving litigant. Two of the respondents, namely the Chairperson of the District Labour Court and the Registrar of the High Court, admit that this rule is discriminatory and should be amended, but both deny that security for costs should be waived in this instance. The third respondent, being the applicant s previous employer, has opposed the application in its entirety. The matter will be argued in Fathers right of access to children born out of wedlock A very lengthy battle for the LAC recently ended rather unsatisfactorily: In a matter originally dealt with by Johann Malan, Mr JJ Van Ellinckhuijzen claimed access to his minor child born out of wedlock. The court directed that a child psychologist s report be compiled to ascertain whether such access was in the best interests of the child. The psychologist found that access would be beneficial and the parties met to arrange access and lay down other ground rules. It was decided that access would be initialised with the assistance of a play therapist. Client then decided to withdraw his claim, against all advice, as he felt that the nature of the relationship between the child s mother and himself which was very antagonistic to say the least would not be conducive to the emotional well-being of the child. In a related matter, however, Tenu Avafia is dealing with an application on behalf of the father of an illegitimate child in an attempt to change the common law position which expects such fathers to contribute to maintenance, but which denies them the right of access. This is deemed to be in conflict with Article 10 of the Constitution. This matter will probably be heard in Unlawful arrest and detention Two teachers, namely Albert Sibeya and Martin Mutumba, were arrested in Ongwediva and detained in Oshakati and Grootfontein from 7-16 August Police officer Chrispin Mazila was arrested and detained in Grootfontein from 6-16 August None of the three were brought before a magistrate within 48 hours as required by the Constitution. After their release they sued the Minister of Home Affairs for unlawful arrest and detention. The Minister argued that the regulations of the state of emergency give him wide powers, which could be exercised in areas outside the Caprivi Region. Norman Tjombe argued the case on behalf of the three. The High Court rejected the Minister of Home Affairs view that the regulations promulgated to deal with the state of emergency in the Caprivi Region declared in August 1999 could be used to arrest

5 LAC Constitutional and Human Rights Unit (CHRU) Annual Report and detain people outside this region. In his ruling, Acting Judge Peter Shivute held that the state of emergency and its regulations, which granted the security forces wide powers of arrest and detention without trial, could only be exercised in the Caprivi Region. This ruling leaves the Minister virtually without a defence. Norman represented Titus Amakali in his civil suit against the Minister of Prisons and Correctional Services for his unlawful detention of 18 days. Amakali was sentenced for five years after being convicted of housebreaking. He received another sentence of six months for escaping from prison. In his second case the court ordered that the six-month sentence should run concurrent with his existing sentence. However, the prison officials decided that the six-month sentence should run consecutive to his existing sentence of five years. He was released only after 18 days after the LAC obtained an interdict for his release. Amakali instituted a civil action against the Minister and was awarded N$ as compensation for the unlawful detention. The High Court subsequently declared his detention unconstitutional. Citizenship and immigration Renunciation of existing citizenship to gain naturalised Namibian citizenship The test case brought on behalf of Elizabeth Tlhoro was argued during February The matter concerned the question of whether a person who wants to become a naturalised Namibian has to renounce her/his existing citizenship before becoming a Namibian citizen. Clinton Light argued that the Constitution regulates the position and that the provisions of the Citizenship Act that purport to introduce a requirement that an applicant must first renounce his/her existing citizenship are not authorised by the Constitution. The Government opposed the application and the court subsequently dismissed the application. However, in argument, counsel for the Government conceded that the applicant was entitled to a Certificate of Identity which would regulate her status in Namibia. The reasons for judgement have not yet been furnished and a decision as to whether or not client should appeal will be made once such reasons are to hand. Permanent residence application rejected without reason Liz Frank, a German national who has lived and worked in Namibia for nine years took her case to court after two applications for permanent residence had been rejected without reason. Ms Frank s original application was based on her professional qualifications, but also her longstanding lesbian relationship with her Namibian partner. In her affidavit Ms Frank pointed out that if she was involved in a heterosexual relationship with a Namibian citizen, she would have been able to marry and thereby gain the constitutional right to reside in Namibia, but due to her sexual orientation this was not possible. The court ruled that the Immigration Selection Board should issue a permanent residence permit to Ms Frank. Not surprisingly the Government then appealed against the ruling. The appeal matter was argued by Lynita Conradie in the Supreme Court in October During argument, counsel for the Government conceded that the Immigration Selection Board should have furnished Ms Frank with its reasons for rejecting her applications for permanent residence. Judgement has been reserved. Refugees One of the cases taken on by the CHRU earlier this year aroused a great deal of public interest, and almost resulted in a constitutional crisis. In June 2000 in the town of Gobabis, a musical group named Osire Stars, consisting of Angolan and Rwandese refugees, was preparing to perform at a social event sponsored by an opposition political party, namely the Congress of Democrats (CoD). Before the group could take to the stage, several Nampol officers arrested its members and detained them at the Gobabis Police Station. They were

6 LAC Constitutional and Human Rights Unit (CHRU) Annual Report subsequently returned to the Osire refugee camp, notwithstanding the fact that they had been granted permission by the Ministry of Home Affairs to reside in Windhoek. Some of the group members subsequently escaped from Osire and instructed the LAC to institute action on their behalf. The CHRU brought an urgent application on Notice of Motion in the High Court seeking an order interdicting the Minister of Home Affairs firstly from detaining and/or deporting our clients, and secondly from removing them from any place in Namibia to the Osire refugee camp. An interim order was obtained in respect of the first part of the relief, while a rule nisi was issued in respect of the second part of the order. The Minister of Home Affairs responded to the order, however, by issuing statements attacking the judiciary, and to the effect that despite the order he would seek to arrest our clients. In the circumstances it became clear that litigation alone would not relieve the pressure on our clients. As these events unfolded, the CHRU met with church leaders and other NGOs in an effort to safeguard the interests of our clients, as well as to attempt to work out a long-term solution to their plight. Following a tense few weeks an agreement was reached in terms of which our clients would apply for work permits while returning to Osire voluntarily, and the rule was allowed to lapse. Medical negligence Ruusa acted for a baby boy, Werner Uusiku, in a medical negligence case against the Ministry of Health and Social Services. Werner, who is terminally ill with leukaemia, lost the use of his left arm due to a nurse s negligence. The Ministry agreed to pay N$ to the boy s parents in settlement of his claim. PUBLICATIONS Human rights manual for Namibian Police The Namibian Police Human Rights Manual was launched and handed over to Nampol at the Israel Patrick Iyambo Police College in Windhoek on 30 March The head of Nampol s Complaints and Discipline Unit, Commissioner Ndeitunga, announced on this occasion that the use of sjamboks (see above) by Nampol had been banned. Unfortunately this is unlikely to reduce torture because, as noted above, some members of the force will continue to use other torture methods that leave less visible marks. However, there has been very positive reaction to the manual from members of Nampol and it is hoped that they will make good use of it. The Chief Police Advisor to the UN in Sierra Leone has also requested permission to use the manual for the training of civilian police in that country. The Chief Justice of Liberia, Justice Gloria Scott, has taken a few copies of the manual and has indicated that she would like to see the use of a similar manual in her country. Bill summaries The LAC provides bill summaries to Parliament in terms of an agreement with the National Democratic institute for International Affairs (NDI). The first bills for summarisation received during the period under review came towards the end of the final parliamentary session for 2000, and these are being summarised by Delme as and when they are required by Parliament. Of these new bills, the following have been summarised (see Bill Summaries page for full list of LAC bill summaries): Motor Vehicle Accident Fund Bill Forestry Bill Traditional Authorities Bill

7 LAC Constitutional and Human Rights Unit (CHRU) Annual Report SUPPORT TO OTHER ORGANISATIONS Delme was invited to serve on the board of directors of the Refugee Hope Foundation. This is a newly established NGO which aims to improve the plight of refugees in Namibia and to promote a better understanding of refugee problems within the Government and Namibian society as a whole. The foundation was officially launched on 20 June 2000 (Africa Refugees Day) at Osire refugee camp. Toni is a trustee of the Hoofbeats Trust, Archillen Gawanab Trust and Maria Geelbooi Trust, and these are administered with the very helpful assistance of Gerson. LECTURES, WORKSHOPS AND OTHER ACTIVITIES Clinton presented a Namibian judicial review case study at a workshop on administrative law organised by the Southern African Legal Assistance Network (SALAN) with funding from the Canadian Bar Association, held in Johannesburg, South Africa, on April Clinton delivered a lecture on the role of the defence lawyer and human rights in the criminal process to trainee detectives at the Police Training College in Windhoek on 8 June Clinton presented a paper on citizenship under the Constitution at a conference titled 10 Years of Namibian Nationhood, held in Windhoek on September Delme prepared an opinion paper on the rule of law, dual citizenship and the Namibian Constitution for publication in The Namibian on 18 February Delme gave a presentation on the role of the LAC in promoting a human rights culture, respect for the rule of law, the legislative process in Namibia and the role of civil society at a workshop organised by the Namibia Development Trust in Windhoek on 8 June Tenu lectured 4 th- and 5 th -year law students at the University of Namibia on environmental law and international economics law from February to October Tenu prepared an article on the rights of tenants for publication in the November 2000 edition of Voice magazine (a publication for Namibian youth). Tenu prepared an article on basic employment rights for publication in the December 2000 edition of Voice magazine. CONCLUSION As from 8 March 2000 the CHRU is being formally funded by the European Commission for a period of three years. The funding proposal commits the unit to achieving a number of measurable outputs. Litigation is restricted to cases concerning a violation of a constitutional right or of a right guaranteed under an international human rights treaty binding on Namibia. Most other cases, such as labour or matrimonial cases, have already been phased out or are in the process of being finalised. An identifiable problem is that much formal and administrative work is being done by the CHRU legal practitioners and candidate legal practitioners, due to the unit not having a dedicated project assistant. This naturally is not cost-effective, but it is envisaged that the situation will improve once a project assistant to be shared by this unit and the Land, Environment and Development Project (LEAD) has been appointed early in I am positive that the new and existing members of the CHRU will work well together as a team and continue to endeavour by all possible means to improve the human rights situation in our society. Toni Hancox Co-ordinator December 2000