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Namibian Children's Rights

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2013-09-05

Children's Rights in Namibia

Children's Rights, or the Human Rights of Children, with particular attention to the right to special protection and care afforded to the young, include the right to:

  • Association with both biological parents;
  • Human identity;
  • Have their rights and basic needs met for food, government paid education and healthcare, and Criminal Laws appropriate for their age and development.

The Law regulating children's rights and parents' responsibilities in Namibia is currently known as the Children's Act 33 of 1960. This Act is however about to be repealed and replaced by the Child Care and Protection Bill. The contents of the new Act are primarily based on the South African Children's Act 38 of 2005.

The Namibian Child Care and Protection Bill will cover a wide range of issues. The most recent draft of the Child Care and Protection Bill was completed by the Minister of Justice in 2008. Because of the extended lapse of time since the last public consultations around the previous draft back in 2001, a new round of public and stakeholder consultations was proposed.

International Approach

Being a member of the UN since 1990, Namibia is a party to many UN Conventions and has shown a strong commitment towards the protection of children's rights.

Namibia is committed to the protection of children's rights by incorporating a broad variety of international legal instruments into its domestic system. Namibia is a party to the most relevant legal instruments dealing with the protection of children's rights, on a global, regional and sub-regional level.

These instruments contain a broad variety of material rights for children, thus the statutory side offers a comprehensive system of children's rights applicable in Namibia. However, from a procedural perspective there is still room for improvement which applies to reporting processes as well as the question of complaints in cases of children's rights violations.

The Namibian Constitution

The Namibian Constitution captures certain rights provided for in the United Nations Convention on the Rights of the Child (CRC).

The Constitution also places a number of obligations on the State to safeguard the rights of all people in Namibia. Apart from the right to vote, all children are entitled to enjoy the rights entrenched in Chapter 3 of The Constitution. Article 15 (1)set out the vital preservation of the rights of children which are in line with those provided for in the CRC as follows:

  • Children shall have the right from birth to a name, the right to acquire nationality and subject to the Legislation enacted in the best interests of children as far possible, the right to know and be cared for by their parents.
  • Children are entitled to protection from economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education or to be harmful to their health or physical, mental, spiritual, moral or social development. In the context children are persons under the age of sixteen (16) years.
  • No children under the age of fourteen (14) years shall be employed to work in any factory or mine, save under conditions or circumstances regulated by an Act of Parliament.
  • Any arrangement or scheme employed or any farm or other undertaking, the object or effect of which is to compel minor children of an employee to work for in the interest of the employer of such employee, shall for the purposes of Article 9 be deemed to constitute an arrangement or scheme to compel the performance of forced labour.
  • No law authorising preventive detention shall permit children under the age of sixteen (16) years to be detained.

South Africa has been quite influential in Namibia's Law reform in general and in the area of Child Law. The involvement of South Africa was prompted by the fact that both countries had used the same Children's Act (1960) and that they shared a legal and social background.

In addition, the members of the consultancy team had worked on children' legislation in various African countries and so could offer a wealth of experience about this practice. On this note, it was appropriate for the two countries to share their experiences with the Namibian technical working group on a proposed law so that the Namibian people could avoid the challenges in the proposed Legislation. Important to note is the involvement of the consultants who provided an opportunity for skills exchange between international resource people and Namibian professionals who work with children. Once the new Legislation (The Child Care and Protection Bill) is promulgated it will replace the outdated Children's Act in order to provide a solid foundation for the care and protection of children in Namibia.

The Child Care and Protection Bill

In its preamble the proposed law states that it was drafted to give effect to certain children's rights as contained in the Namibian Constitution and to set out principles relating to the child's welfare as well as to provide for the establishment of institutions for children, such as Child Welfare Advisory Counsel, a children's Ombudsperson and the appointment of social workers. Of great importance is the intended establishment of Children's Courts, the provisional facilitations of early intervention services and provision for child protection and foster care, children's homes and shelters and other places of safety and care, as well as the educational and vocational training centres besides providing for issuing of contribution orders. Furthermore, the draft law intends to cover areas that have been controversial in some jurisdictions, such as the adoption of children, inter-country adoption and the prevention and criminalisation of child trafficking.

In light of the above, the proposed law creates new offences relating to child abuse and neglect, the unlawful removal or detention of a child within Namibia and the unlawful removal of children from Namibia.

Important issues covered by the Child Care and Protection Bill

The Child Care and Protection Bill is primarily based on the South African Children's Act 38 of 2005 which deals with the principles relating to care and protections of children as further defines parental rights and responsibilities. The Children's Act 38 of 2005 can be found on the following link [Insert hyperlink]. I furthermore deal with the more unique aspects of the Child Care and Protection Bill herein below.

It is important to note that the process of viewing the Legislation is underway and the comments below touch only on the draft Legislation that has been made public. Hence, it is impossible to comment on the draft law while it is still confidential.

Child Welfare Advisory Council

The draft law provides for the establishment of a Child Welfare Advisory Council, whose functions include designing and proposing programs for prevention, protection or care of children that will advance the best interests of children as well as monitoring the implementation of The Child Care and Protection Act in any other related laws, once promulgated.

Children's Ombudsperson

The proposed Bill provides for a children's Ombudsperson who would be appointed by the Minister of Gender Equality and Child Welfare. No qualifications, criteria or term of office was specified although it appeared that the Ombudsperson would be a member of the public service. This children's Ombudsman was according to the draft law charged with two primary duties:

  • To investigate complaints arising under The Child Care and Protection Act; and
  • To monitor the implementation of the CRC and other international instruments relating to child care and welfare which are binding on Namibia.

Parenting Plans

This provision caters for procedures for parents and other caregivers to reach an agreement on issues pertaining to the exercise of custody, access and maintenance as a way of preventing future disputes. Under the Bill,currently open to comment, Parenting Plans are obliged to serve the best interests of the child involved. Parties to the Parenting Plan need to obtain assistance from an attorney, social worker or psychologist or they have to ask social workers or other suitably qualified persons to mediate if they are unable to reach an agreement.

Children's Courts

Children's Courts under the proposed Child Care and Protection Bill would operate in very much the same way as they do now under The Children's Act, with a few new innovations. According to the draft legislation, Children's Courts are, amongst other functions, charged with overseeing the wellbeing of children, examining the qualifications of applicants for adoption and granting Adoption Orders. A large problem in South African law is that the High Court has the widest jurisdiction as to matters pertaining to children and this Courts are not easily accessible. Not only are High Court proceedings very expensive, but its locations divided along provincial lines makes bringing matters before them very problematic particularly for children in rural areas across the vast geographical space that South Africa occupies. Although the Legal Aid Board theoretically could/should assist children financially in accessing the Superior Courts, the fact of the matter remains that the children mostly require assistance in matters where parents, caregivers or guardians are the cause of the issue under determination. If these instances, the person which would ordinarily be the vehicle through which the child's matter is brought to the attention of the Courts, or an application for legal aid is made, is the very reason the children need assistance and they do not act on behalf of the child in accessing legal representation or access to Court. The result is unfortunately, and saddening to the South African community, that children are disempowered in accessing judicial determination. The Children's Court would be ideal for providing such access in every Magisterial district. In addition the costs involved would be much lower than those in the Superior Courts, and the increase in jurisdiction would be welcomed.

Children in need of care and protection

All children need care and protection of course. However this concept in law means that a child is in need of assistance which is not being provided for in the home environment. Care is associated with nurturing while protection is associated with safety issues. It is necessary to balance the child's right to know and be cared for by his or her family with a the child's need for protection from any significant risk of neglect or abuse.

The draft Legislation defines a child in need of protection as one who is:

  • Abandoned or orphaned and insufficient provision has been made for his/her care, or is engaged in behaviour that is or will likely be harmful and the parent or the guardian or the caregiver is unable to or unwilling to control that behaviour;
  • Lives or works on the streets for a living;
  • Lives in or is exposed to circumstances which may seriously harm his/her physical, mental or social welfare;
  • Is in a state of physical or mental neglect;
  • May be at risk if returned to the custody of the parents, guardians or the person in whose care the child is and there is reason to believe that such child will live in or be exposed to circumstances which may seriously harm his/her physical, mental or social welfare;
  • Is or will likely be maltreated or abused by the person having care, custody, control or charge of the child.

National Child Protection Register

The draft Legislation proposes the National Child Protection Register to list all perpetrators of child abuse in an effort to ensure that they do not work with children in the future. The Register resembles the Sex Offenders Registers used in some countries.

Foster Care

In terms of the draft law, a Children's Court may place a child in foster care with a family member who is not its parent or guardian. However before the Court does so it is obliged to follow the Children's Court process proposedin chapter 7 of the legislation. In terms of the draft law, prospective foster parents have to apply to the MGECW (Minister of Gender Equality and Child Welfare) to be recognised as foster parents to a social worker. The social worker is required to examine the applicant's circumstances and thereafter report on them to the Minister of Gender Equality and Child Welfare. Children can be placed in foster care only after they have been found by the court to be in need of protection with the support of a second social worker's report.

Facilities which care for children and Contribution Orders

The draft legislation will provide for various forms of alternative care for children who have been abandoned or are not safe in their usual home. Such facilities may also be utilized as alternatives to police cells and prisons for juveniles.

Adoption

Namibia approves a relatively small number of adoptions each year with an average of about 80 adoptions registered annually over the last five years. Chapter 2 of the draft law regulates the position regarding inter-country adoptions. In terms of the aforesaid chapter, a person who is habitually resident in a foreign country and who wishes to adopt a child who is habitually resident in Namibia is required to apply to the competent authority of the country concerned, which authority is tasked with submitting a report to the Namibian Minister. No inter-country adoption is permitted to take place without the latter's approval. In comparison with the South African legal position, the problems surrounding the verification of background information from foreign applicants for adoption are dealt with unequivocally. A social worker unable to verify facts relating to the foreign applicant's background would be required to bring such an application to the attention of the Children's Court. Consequently, if the Children's Court is not satisfied with the verification of any information relevant to the adoption, the application would necessarily have to be denied.

Child Trafficking

The proposed Legislation makes the trafficking of children a crime and it provides for the other territorial jurisdictions to address trafficking by a citizen or permanent resident of Namibia outside the countries borders. It also provides mechanisms to address trafficking by companies and organisations by making them liable for involvement in trafficking by their employees and agents.

Consent to medical treatment, testing and emergency operations

Children need special protection because of their tender age and physique, mentally and physically, and their incability to look after themselves. The proposed Legislation introduces a new general rule in terms of which a child may consent to medical treatment. This means that Namibian law will now recognise the "Mature Minor Rule" which entitles the minor to consent to medical treatment. This implies that if the medical practitioner believes that the minor can give informed consent to treatment and it is in the minor's best interests not to notify his/her parents, the medical practitioner concerned can proceed with the treatment. The exception to the above is that a child cannot consent if he or she is below fourteen (14) years of age and if he or she is not of sufficient maturity or mentally incapacitated to consent or understand the benefits, risks and the social or other implications of the treatment. In situations requiring emergency medical treatment for a child, the draft legislation gives power to the Superintendent of the hospital to consent to the medical treatment or surgical operation of a child, subject to:

  • The treatment or operation being necessary to preserve the life of the child or to save the child from serious or lasting physical injury or disability;
  • The need for the treatment or operation being so urgent that it cannot be delayed for the purpose of obtaining consent.

The proposed Legislation also covers the issue of HIV testing in children. It provides that a child may not be tested for HIV unless it is in his/her best interests for the test to be done. Two basic areas that are covered:

  • General circumstances under which a child may be tested for HIV and Aids; and
  • Provisions concerning consent.

The overall "best interests of the child" standard is to provide generally as to when it is appropriate to subject a child to an HIV test. It should be noted at this juncture that the "best interests rule" is the yardstick guiding the application of the draft legislation in its entirety.

Corporal Punishment

The draft legislation would require any person who has control of a child, including the child's parents to respect the child's right to physical integrity. This would include foster parents, primary care takers and other caregivers. According to the MGECW summary report on the draft law, it is absolutely forbidden for anybody to administer corporal punishment to a child at any place of safety or place of care, which covers day-care centres, creches and shelters, children's homes and educational or vocational centres. Proposed law states that any law which allows corporal punishment of a child by Court, including a Traditional Court, is no longer valid. This rule covers Statutes, Common Law and Customary Law.

Other child protection measures

The draft Legislation provides for protective measures for children in particularly vulnerable situations, such as child headed households, the worst forms of child labour, child safety in places of entertainment and crimes relating to child abuse and neglect. The issue of child headed households is an important one in Namibia where some children have been orphaned due to the high prevalence of HIV and Aids.

Conclusion

In terms of the draft legislation, the government will be responsible to exhaust all available measures to ensure that children's rights are respected, protected and fulfilled. While the draft legislation and ratification of conventions give effect to the rights of children, Namibia would have to be constantly reviewed regarding her laws relating to children. This involves assessing national social services, legal health and educational systems and the levels of funding made available for the services and systems.


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