Text reviewed by Lynn Gertiser
Sexual and reproductive health is included in the Constitution of Namibia through, inter alia, the following articles:
- The dignity of all persons shall be inviolable (Art. 8 (1)). In any judicial proceedings or in other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed (Art. 8 (2) (a)). No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment (Art. 8(2) (b)).
- All persons shall be equal before the law (Art. 10 (1)). No persons may be discriminated against on the grounds, inter alia, of sex (Art. 10 (2)).
- Men and women of full age, without any limitation due to race, colour, ethnic origin, nationality, religion, creed or social or economic status shall have the right to marry and to found a family (Art. 14 (1)). Marriage shall be entered into only with the free and full consent of the intending spouses (Art. 14 (2)).
- Laws can be passed providing directly or indirectly for the advancement of persons within Namibia who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices, or for the implementation of policies and programmes aimed at redressing social, economic or educational imbalances in the Namibian society arising out of past discriminatory laws or practices… (Art. 23 (2)).
- Both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which such customary or common law does not conflict with this Constitution or any other statutory law (Art. 66 (1)). Subject to the terms of this Constitution, any part of such common law or customary law may be repealed or modified by Act of Parliament, and the application thereof may be confined to particular parts of Namibia or to particular periods (Art. 66 (2)).
Sexual and reproductive rights
- HIV/AIDS: Gender-based violence may have implications to sexual and reproductive health, including HIV/AIDS. The vulnerability of women at the household and public domain to gender based violence in all forms increases their risk of contracting HIV/AIDS. Namibia has, in its programme, committed to remove punitive laws, policies, practices, stigma and discrimination that block effective responses to AIDS (Global Aids Response Progress Reporting 2012, p. 10). According to Namibian policies, the treatment to a rape survivor is provided if she is considered to be at risk of contracting HIV or other sexually transmitted infections. The Southern African Development Community (SADC) Protocol on Gender and Development requires providing the testing, treatment and caring for a survivor of sexual offence, as well as the prevention of sexually transmitted infection and the ready access at the health facilities to post-exposure prophylaxis to reduce the risk of HIV infection.
- Abortion: Abortion is permitted, inter alia, to save woman’s life, to preserve a woman’s physical or mental health or in the case of rape or incest (Abortion and Sterilisation Act). Three physicians are required to certify to the existence of above-mentioned grounds for an abortion. An abortion is performed in a government hospital or in an approved medical facility.
- Polygamy is illegal under Namibian civil law but is practiced under some customary laws. This may increase women’s exposure to HIV/ AIDS.
- Child Marriage/Forced marriage: The age limit for civil marriage is 18 (Married Persons Equality Act, Art. 1 26 (1)). The customary marriage, which is also practiced in Namibia, does not impose a minimum marriage age for boys or girls where the age limit for marriage depends on the customs of the community practicing customary marriage. The numerous studies indicate that the forced marriage (such as a marriage between young female with older man) pertains in Namibia.
- Rights of sexual minorities: Domestic violence is not recognized in same sex relationships (Combating of Domestic Violence Act Regulations).
- Violence against women: Rape is defined in broad terms (Combating of Rape Art, No. 8 of 2000, Art. 2) and also allows the prosecution of spousal rape (2 (3)). The perpetrator may be sentenced to imprisonment from five years up to 45 years (Art 3. (1)). However, the minimum punishment of 15 years is imposed on a person who at the time of rape knows that he or she is infected with a serious sexually transmitted disease, such as HIV (Art. 3 1. (dd)). Domestic violence, its threat or attempt, is against the law and includes civil, customary or religious marriage, the engagement as well as, inter alia, former marriage partners, cohabiting partners, family members and a man and a woman in an intimate relationship. Where a child is born to a couple, their domestic relationship continues throughout the lifetime of the child and for one year after the death of the child. This does not apply to same sex relationships. The court can extend these time periods if there are good reasons to do so. (Combating of Domestic Violence Act Regulations) However, based on numerous studies the gender-based violence is widespread.
Legal framework in Namibia regarding the sexual and reproductive rights include:
- Combating of Domestic Violence Act, No. 4 of 2003
- Combating of Domestic Violence Act Regulations, 2003
- Combating of Rape Act, No. 8 of 2000
- Labour Act, No. 11 of 2007
Namibia has in place the policies, strategies and programmes, such as:
- National Gender Policy (Revised), 2010
- National Plan of Action on Gender Based Violence, 2012-2016
Namibia has ratified international conventions, such as:
- United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) was ratified by Namibia in 1992.
- Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP CEDAW) was ratified by Namibia in 2000.
- SADC Protocol on Gender and Development was ratified by Namibia in 2010.
- African Charter on Human and Peoples' Rights (ACHPR) was ratified by Namibia in 1992.
- Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) was ratified by Namibia in 2004.
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children was ratified by Namibia in 2002.
- Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (PACHPRRWA) was ratified by Namibia in 2004.
Sexual and reproductive rights challenges
Numerous health care challenges persist in Namibia and also in relation to sexual and reproductive rights. Although many protocols and conventions are ratified and laws are in place, continuous efforts need to be made in the field of sexual and reproductive rights. Some of the problems are:
- Sexual and gender-based violence
- Common cultural practices in the country
- Health care related matters
- Customary practices