Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Namibia (Ratification: 2001)

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes the Government’s indication that there is no code of good practice on sexual harassment. The Committee further notes from the Government’s report that the task force comprising representatives of workers, employers and the Government which was set up to review the Labour Act section by section will also re-examine the fines applicable in cases of sexual harassment. The Government adds that when this process is concluded, it will be in a position to plan sensitization activities through newspapers and radio stations. The Committee recalls that sexual harassment is defined by section 5(7)(b) of the 2007 Labour Act as follows: “any unwarranted conduct of a sexual nature towards an employee which constitutes a barrier to equality in employment where (i) the victim has made it known to the perpetrator that he or she finds the conduct offensive; or (ii) the perpetrator should have reasonably realised that the conduct is regarded as unacceptable, taking into account the respective positions of the parties in the place of employment, the nature of their employment relationships and the nature of the place of employment”. The Committee observes that while this definition appears to cover a wide range of conduct constituting quid pro quo sexual harassment in employment, it remains unclear whether it also covers conduct of a sexual nature that is not directed at a specific employee but which creates an intimidating, hostile or humiliating working environment. The Committee asks the Government to clarify the definition of “sexual harassment” in section 5(7)(b), specifying if it also covers sexual harassment due to a hostile environment, and if not, to take the opportunity arising from the review of the Labour Act to include a clear definition encompassing both quid pro quo and hostile environment sexual harassment to address effectively all forms of sexual harassment. The Government is asked to provide information on any legislative developments regarding sexual harassment, including addressing sanctions. The Committee also encourages the Government to take practical measures to address sexual harassment in employment and occupation, such as by the development of a code of practice, training for the social partners and enforcement authorities, awareness-raising campaigns, helplines and legal assistance or support units to assist victims, and asks the Government to provide information on any measures adopted or initiatives in this regard.

Sexual orientation. The Committee recalls that the 2007 Labour Act does not specifically prohibit discrimination on the ground of sexual orientation, which had been covered under the 1992 Act. The Committee notes from the Special Report on Racism and Discrimination published by the Office of the Ombudsman in November 2017 that lesbian, gay, bisexual, transgender and intersex (LGBTI) people continue to experience discrimination, including at their workplace. The prohibition of discrimination on the ground of sexual orientation no longer appears in the 2007 Labour Act (see paragraph 4.2.10.1). The Government indicates that the task force mentioned above will also address this issue and take into account the request from the Committee to ensure that workers have the same level of protection against discrimination on the ground of sexual orientation as provided for under section 5 of the Labour Act with respect to other grounds. The Committee recalls the importance of maintaining at least the same level of legislative protection against discrimination and trusts that, further to the review process of the Act, the Government will consider amending the Labour Act so as to include specific provisions prohibiting discrimination based on sexual orientation in employment and occupation.

Articles 1 and 2. Equality of opportunity and treatment of members of the Himba and San communities. Recalling its previous comments on the situation of indigenous peoples and the concerns raised by the United Nations Special Rapporteur on the rights of indigenous peoples (A/HRC/24/41/Add.1, 25 June 2013), the Committee notes the Government’s statement that it considers education as the most important tool for the development of the marginalized communities and therefore the bulk of the budget is allocated to education support. The Government states that 581 students have been supported. The Government also indicates that it has constructed several schools and established kindergartens for the Ovatue and Ovatjimba communities. With respect to job opportunities, the Committee notes the Government’s indication that both public and private sector organisations continuously submit recommendations in respect of young men and women from marginalized communities for consideration for employment in these organisations. Further, 1,100 households from these communities were resettled in farms since 2005. The Committee welcomes the publication of the Guide to Indigenous Peoples’ Rights in Namibia by the Office of the Ombudsman. The Guide highlights the progress made in law and practice by Namibia over the years but it also states that marginalized and indigenous peoples are still subject to precarious living conditions and remain some of the most marginalized and impoverished communities in the country. It concludes that their “situation would improve only after the rest of the population accept and regard them as equal”. The Committee further notes that the draft White Paper on the rights of indigenous peoples in Namibia, prepared in 2014, includes the Government’s commitment “to engender a better understanding of the cultures of indigenous peoples and to develop an appreciation that has the potential to lead to more respect and less discrimination against them”. The draft White paper also sets the following objectives: (i) developing national legislation protecting the rights of indigenous peoples and an integrated strategy; (ii) ensuring that they enjoy the same rights in practice as all other Namibians; (iii) ensuring their adequate consultation, participation and representation; (iv) improving access to land and ensuring secure land tenure strategies; (v) improving food security and supporting sustainable livelihoods; (vi) ensuring respect for indigenous cultures and bringing an end to discrimination against them; (vii) ensuring their equal access to education; (viii) improving their health status; and (ix) advancing gender equality for indigenous women and girls. With reference to its observation, the Committee recalls that the National Human Rights Action Plan (NHRAP) 2015–19 also deals with issues faced by marginalized groups, including indigenous peoples, with respect to the right to land, the right to education (low literacy level, high level of absenteeism and high rate of drop-outs), training and employment, and the right to non-discrimination.

With respect to the concerns previously raised on the situation of the rights of marginalized indigenous peoples over resources, the Committee notes the Government’s indication in its report that Namibia, being a unitary State, does not have a specific policy or legislative framework which provides for special treatment and benefits for people living in or near resource-rich areas. Due to the size of the investment required in the minerals extractive industry, the Government adds that it is almost impossible for local communities to invest and take part in projects. The Government adds that the possible benefits that could be conferred include preferential employment opportunities and the provision of services such as schools, clinics, and so forth. The Committee asks the Government to indicate whether the draft White Paper on the Rights of Indigenous Peoples prepared in 2014 has been finalized and is being translated into concrete action, and to provide information on any follow-up undertaken to promote equality of opportunity and treatment for indigenous peoples in education, training, employment and occupation, including traditional activities, and the results obtained. The Committee also asks the Government to provide detailed information on the measures adopted to implement the NHRAP 2015–19 with respect to indigenous peoples, including any steps taken to foster mutual tolerance and respect and to fight stigmatization and discrimination. The Government is further asked to provide details of any recent study assessing the needs and examining the situation of indigenous peoples, in particular in the fields of education, training, employment and occupation and including in their traditional activities.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes that the Government’s report only contains information on the labour market services, in particular on awareness-raising campaigns, but that it does not provide any information on the implementation of the National Gender Policy (2010–20). The Committee notes that in its final observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern about the high rates of unemployment among women and the continued occupational segregation between women and men in the labour market as well as the low representation of women in managerial positions in the private sector. With respect to education, the CEDAW recommended that girls and young women be encouraged to choose non-traditional fields of study and professions and that efforts be made to reduce the number of girls dropping out of school by facilitating the re-entry into school of young mothers after having given birth (CEDAW/C/NAM/CO/4-5, 28 July 2015, paragraphs 30–33). The Committee notes from the Employment Equity Commission (EEC) Annual Report 2015–16 that women were under-represented at the top three occupational levels. It also notes the detailed information and statistics on the situation of women in employment and occupation from the Namibia Gender Analysis 2017 prepared by the Legal Assistance Centre of Namibia, showing, inter alia, higher rates of unemployment for women, in particular young women (49 per cent compared to 38 per cent for young men in 2016) and occupational gender segregation in the labour market. The Committee asks the Government to provide detailed information on the steps taken, whether within the framework of the National Gender Policy (2010–20) or the affirmative action scheme, to increase the access of girls and women, including from indigenous peoples, to education, vocational training in non-traditional fields, and to employment, in particular at the managerial level. The Committee also asks the Government to provide information on the steps taken to address gender stereotypes regarding the capabilities and preferences of women and their role in society.

Monitoring and enforcement. Ombudsman. The Committee notes the general information provided by the Government on the awareness-raising campaigns run by the Ministry of Labour, Industrial Relations and Employment Creation and the dissemination of information brochures. The Committee notes with interest the numerous activities undertaken by the Office of the Ombudsman to address and eliminate discrimination in the country. It notes for instance that the Ombudsman held public hearings on racism, and racial and general discrimination in June 2017, to glean the public’s perception on such issues in order to help guide and revisit existing laws and formulate regulations. The Committee trusts that the Government will continue to provide support to the activities and research carried out by the Office of the Ombudsman. It asks the Government to provide information on the results of the public hearings on racial and general discrimination and any follow-up recommendations or steps taken in this respect. The Committee once again asks the Government to provide information on any cases of discrimination in employment and occupation dealt with by the competent authorities.