C. Principal matters of concern and recommendations
Non-discrimination
9. While noting the measures taken to eliminate discrimination, the Committee is concerned that protection against discrimination is insufficient. It is particularly concerned about:
(b) Discrimination, harassment and violence against lesbian, gay, bisexual and transgender persons, including cases of so-called “corrective rape” against lesbians;
(c) Discrimination on the basis of sexual orientation not being explicitly prohibited, exclusion of sexual orientation as a prohibited ground for discrimination from the Labour Act (Act No.11 of 2007), the maintenance of the common law crime of sodomy, the exclusion of same-sex partnerships from the Combating of Domestic Violence Act (Act No. 4 of 2003);
10. The State party should conduct extensive education and awareness-raising campaigns involving and targeting traditional leaders and the general public, both children and adults, to eliminate all forms of discrimination. It should:
(b) Adopt legislation explicitly prohibiting discrimination based on sexual orientation, including in the Labour Act (Act No. 11 of 2007), and adopt hate crime legislation punishing homophobic and transphobic violence and vigorously enforce it;
(c) Abolish the common law crime of sodomy and include same-sex relationships in the Combating of Domestic Violence Act (Act No. 4 of 2003) so as to protect same-sex partners;
Prohibition of torture and ill-treatment
21. The Committee is concerned at reports of torture and ill-treatment in police cells and detention facilities, of the use of excessive force against suspects and at:
(a) Reported cases of violence and harassment against lesbian, gay, bisexual and transgender persons by members of the police;
(d) The lack of any independent mechanism to investigate acts of torture and ill- treatment (arts. 2, 7, 10 and 26).
22. The Committee encourages the State party to adopt legislation on prevention and combating of torture, and provide training to all relevant professionals, including police and prison guards on its provisions. It should furthermore:
(a) Ensure that perpetrators of torture and ill-treatment are identified, prosecuted and tried before ordinary courts, and, if found guilty, punished and victims adequately compensated;
(b) Ensure that all cases of torture and ill-treatment are properly investigated by an independent mechanism;
Expulsion and detention of asylum seekers
35. The Committee notes with concern that asylum seekers and refugees are required to reside in the Osire refugee settlement, which they may leave only after obtaining a permit, thereby infringing on their ability to, inter alia, pursue education and employment. It also notes with concern that persons requesting asylum on the basis of persecution for sexual orientation or gender identity may not be sufficiently protected against refoulement. Furthermore, the Committee is concerned that unaccompanied or separated children are treated like adult asylum seekers (arts. 2, 9 and 24).
36. The State party should remove restrictions on the ability of refugees and asylum seekers to move freely within the State party. It should also include persecution based on sexual orientation and gender identity among the grounds for protection against refoulement. Furthermore, the State party should ensure that unaccompanied or separated children are afforded special protection and systematically provided with a regularly monitored guardian upon their arrival.
Link to full text of the report: Concluding Observations-CCPR-Namibia-2016-eng
