Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

Article 1(1)(b) of the Convention. Additional grounds, including HIV status. Legislation. In its previous comment, the Committee requested the Government to take steps to ensure coherence between section 5 of the Labour Act that defines discrimination and section 33 on dismissal, so as to prohibit dismissals on the grounds of HIV and AIDS status, the degree of physical or mental disability, and family responsibilities. The Committee notes that in its report, the Government indicates that the current Labour Act is under review and that section 33(3) will be amended to extend the prohibition of dismissal of an employee to HIV and AIDS status, the degree of physical or mental disability, and family responsibilities. The Committee also requested the Government to provide information on the cases of discrimination in relation to HIV and AIDS status dealt with by labour inspectors and labour courts. The Committee notes that, in this regard, the Government refers to a court case of 2000, in which the Court considered that the refusal to employ a person solely on the basis of this person’s HIV status was discriminatory. While taking note of this information, the Committee recalls that the fact that no new cases have been dealt with by the courts in the past twenty years may be an indicator of the lack of awareness, lack of access to remedies, or fear of retaliation. In that regard, the Committee wishes to point out that, according to the results of Namibia’s first ever population-based HIV survey, known as NamPHIA, the country has become the first country in Africa to have more than three-quarters of its HIV-affected population virally suppressed (meaning they cannot pass the virus on to someone else) and welcomes this remarkable achievement. However, it also notes that Namibia still ranks fifth highest in the world in terms of its HIV burden, with an estimated 12.1 per cent of adults aged 15–49 living with HIV, according to the latest figures of the Joint United Nations Programme on HIV/AIDS (UNAIDS). The Committee trusts the Government will effectively ensure that section 33(3) of the Labour Act will be amended to extend the prohibition of dismissal of an employee to HIV and AIDS status (actual or perceived), the degree of physical or mental disability, and family responsibilities and asks to be provided with a copy of the amendment once adopted. The Committee also asks the Government to: (i) adopt specific measures to ensure that workers who are victims of discrimination on the basis of HIV status (actual or perceived) have effective access to legal remedies; and (ii) provide information on the number of cases of discrimination based on HIV status and on their outcome.

Articles 2 and 5. Implementation of the equality national policy and affirmative action. The Committee recalls that in its previous comment, it noted: (1) the adoption of the National Human Rights Action Plan (NHRAP) 2015–19, which identified as one of the main areas of focus “the right not to be discriminated against”, in particular with respect to certain groups including women, indigenous peoples, persons with disabilities and LGBTI persons; and (2) the publication, in November 2017, of the Office of the Ombudsman’s Special Report on Racism and Discrimination, which included recommendations for the Government (formulation of programmes and strategies, awareness-raising, support to victims, etc.) and for the employers’ organizations (review of recruitment procedures, training to detect discrimination, establishment of procedures to deal with discrimination claims, etc.). The Committee further recalls that in the NHRAP, the following actions were envisaged: (1) a comprehensive review of the regulatory framework to assess non-discrimination compliance; (2) the development of a White Paper on Indigenous Peoples’ Rights; (3) research of comparable legal instruments providing protection of the rights of persons with disabilities and developing benchmarks (i.e. building design standards); (4) research and review of laws and policies to identify and rectify provisions that discriminate against “vulnerable groups” (i.e. women, children, elderly persons, sexual minorities, persons with disabilities and indigenous peoples); (5) the review of the Affirmative Action (Employment) Act (Act No. 29 of 1998) with a view to establishing the continued relevance of race as part of the affirmative action criteria; and (6) the review of the current Racial Discrimination Prohibition Act (Act No. 26 of 1991) with a view to enacting new legislation against discrimination. In follow-up to its request to provide information on the implementation of the NHRAP 2015–19 and the impact of the Office of the Ombudsman’s Special Report on Racism and Discrimination, the Committee notes that the Government merely indicates that the Namibia Employers’ Federation (NEF) stated that it has disseminated the recommendations of the Ombudsman and the NHRAP to all its members. The Committee asks the Government to provide detailed information on the concrete measures taken to implement the action planned in the National Human Rights Action Plan 2015 19, in particular the review of the legislative and regulatory framework, and information on any research undertaken, obstacles encountered and results achieved in this regard. It further asks the Government to indicate what follow-up it gave to the recommendations in the Office of the Ombudsman’s Special Report on Racism and Discrimination and the concrete steps taken to address such discrimination.

Designated groups. Persons disadvantaged on the ground of race, women and persons with disabilities. In its previous comment, the Committee requested the Government to: (1) step up its efforts to promote access to training and employment opportunities for workers belonging to the three “designated groups” pursuant to the Affirmative Action (Employment) Act, 1998; and (2) provide information on any legislative developments regarding the New Equitable Economic Empowerment Framework Bill 2015. The Committee notes that the Government refers to the 2016–2017 Employment Equity Commission (EEC) Report, in which the EEC has noted that, after 19 years of affirmative action implementation, “white employees”, who constitute a mere 4 per cent of the workforce occupy 56 per cent of positions at the Executive Director level and 26 per cent of management positions. In addition, the Government indicates that results achieved for persons with disabilities were still rather disappointing compared to other groups, as they are under-represented at almost every occupational level. The Committee welcomes the Government’s indication that the EEC introduced a number of measures to intensify it efforts towards workplace transformation, including the following initiatives: (1) the EEC identified some provisions of the Affirmative Action (Employment) Act, 1998 that required legislative redress and proposed amendments that are currently under consideration by the Labour Advisory Council (LAC); (2) the EEC engaged in the review of the EEC Employer’s Guidelines and the Regulations to the Affirmative Action (Employment) Act, 1998; (3) the EEC prosecutes employers for non-compliance with the provisions of the Affirmative Action (Employment) Act, 1998; (4) the EEC visits work places to provide training on affirmative action; (5) the EEC case management system was introduced in 2017 to manage the affirmative action report process; and (6) the EEC identifies areas in which research projects are particularly needed and, in this context, has singled out research projects on persons with disabilities. The Committee welcomes the Government’s efforts to deal with the persistent underlying causes of discrimination against the “designated groups”. The Committee asks the Government to continue: to (i) step up its efforts to promote access to training and employment opportunities for designated groups and review regularly the affirmative action measures to assess their relevance and impact and to provide information on any measures taken is this regard and the results achieved; and (ii) provide information on any follow-up given to the work of the Employment Equity Commission (EEC) related to the review of the Affirmative Action (Employment) Act, 1998, and on the activities of this Commission. The Government is asked once again to provide information on any legislative developments regarding the New Equitable Economic Empowerment Framework Bill 2015.

The Committee is raising other matters in a request addressed directly to the Government.