Namibia

Summary and Analysis

The Namibian Constitution provides that all persons are entitled to a fair hearing in any legal proceeding concerning their civil rights and obligations.  The Constitution also guarantees each child certain rights, including the right to a name and nationality, the right to know and be raised by her parents, and the right not to be subjected to economic exploitation.  On the question whether children have a special right to be heard, or to receive some form of representation in legal proceedings, the Constitution is silent.

The only Namibian statute devoted exclusively to the topic of children is the Children’s Act #33 of 1960.  The Children’s Act sets out ground rules for the operation of a “children’s court” over which the commissioner or assistant commissioner of child welfare presides.  It authorizes the appointment of a “children’s court assistant” to adduce evidence and cross-examine witnesses at children’s court proceedings and offer general assistance to the children’s court.  Ordinarily, prosecutors play this role.  The children’s court assistant has the power to direct the clerk of the court to subpoena any witness to testify or produce evidence.  The Children’s Act indicates that children who are alleged to be in need of care may appear before the court.  Finally, the Children’s Act guarantees children at least ten years old the right to be heard in adoption proceedings, and stipulates that no such child may be adopted without her written consent.  It is expected that the Children’s Act will be superseded by a new Child Care and Protection Act, but the CCPA is not yet drafted, and no specifics are available on what it will say.

Currently pending in the Namibian Parliament is the 2003 Child Status Bill (B.23-2003).[2]  The purpose of the CSB is to make sure that children receive equal treatment regardless of whether they are born to married parents.  The CSB requires a court making any decision relating to custody to consider the child’s expressed wishes.  It also authorizes the court to appoint a lawyer to represent a child where doing so is necessary to protect the child’s best interests.

An additional source of potential authority for providing legal representation to children appears in a draft Child Justice Bill[3], which governs cases in which children are charged with crimes.  The CJB provides that lawyers representing children in such cases must permit their clients to give independent instructions, so far as they are able.  It requires that a child in such a case be provided with a lawyer at state expense under certain conditions (e.g., the child is remanded in detention).  It also stipulates that a child may not waive legal representation, and provides specific instructions that courts and lawyers must follow in cases in which children refuse to give instructions to their legal representatives.

Finally, as a general matter, Namibian common law authorizes courts to appoint “curators ad litem” to represent children under the age of 21.

Sources of Law (In Order of Authority)

Constitution

Constitution[4]

Article 12  [Fair Trial]

(1)(a) In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law: provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, the public order or national security, as is necessary in a democratic society.

…

(e) All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement of and during their trial, and shall be entitled to be defended by a legal practitioner of their choice.

Article 15  [Children’s Rights]

(1) Children shall have the right from birth to a name, the right to acquire a nationality and, subject to legislation enacted in the best interests of children, as far as possible the right to know and be cared for by their parents.

(2) Children are entitled to be protected 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. For the purposes of this paragraph children shall be under the age of sixteen (16) years.

(3) No children under the age of fourteen (14) years shall be employed to work in any factory or mine, save under conditions and circumstances regulated by Act of Parliament. Nothing in this paragraph shall be construed as derogating in any way from Paragraph (2).

(4) Any arrangement or scheme employed on any farm or other undertaking, the object or effect of which is to compel the minor children of an employee to work for or 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.

(5) No law authorising preventive detention shall permit children under the age of sixteen (16) years to be detained.

International Law

Convention on the Rights of the Child, Article 12[5]

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Regional Agreements

African Charter on the Rights and Welfare of the Child,[6] signed Oct. 10, 1997, ratified Jan. 7, 2000.

Article 4.  Best Interests of the Child

1. In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.

2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.

Article 7: Freedom of Expression

Every child who is capable of communicating his or her own views shall be assured the rights to express his opinions freely in all matters and to disseminate his opinions subject to such restrictions as are prescribed by laws.

Statutes

Children’s Act #33 of 1960[7]

Section 7. Officers of a children’s court

(1) A commissioner or assistant commissioner of child welfare shall preside over a children’s court and such a court shall have such jurisdiction and powers as may be conferred upon it by this Act or any other law.

(2) A commissioner of child welfare may, for the purpose of advising him at any enquiry under section thirty or at the hearing of any application for an order of adoption under section seventy-one, summon to his aid to sit with him as assessor or assessors, any person who has, or any two persons who have, in his opinion, experience in any matter which may arise for decision at the said enquiry or hearing.

(3) Such an assessor may be so summoned to sit with the commissioner for the holding of a particular enquiry or for the hearing of a particular application or for the holding of any enquiry or for the hearing of any application during a period specified in the summons.

(4) Such assessors shall advise the commissioner on all questions, except questions of law, arising during the enquiry or hearing but the finding, decision or order of the children’s court in question shall be determined by the commissioner.

(5) Such assessors shall be entitled to such allowances for their services as may be prescribed in consultation with the Minister of Finance.

(6) Subject to the laws governing the public service-

(a) the Minister of Plural Relations and Development may, for every Bantu children’s court or for every children’s court situated within any area under his administrative control; and

(b) the Minister of Justice may for every other children’s court, appoint an officer to be styled a children’s court assistant (or two or more such officers) who shall at any proceedings of the children’s court to which he is attached adduce any available evidence relevant to those proceedings and who may at such proceedings cross-examine any witness giving evidence thereat whom he did not call, and who shall generally assist the said court in performing its functions.

(7) Any officer delegated by an Attorney-General to conduct prosecutions at the public instance before the magistrate’s court of any district shall be ex officio a children’s court assistant of any children’s court held within that district.

Section 8. Procedure in children’s courts

(1) A children’s court shall sit in a room other than that in which any other court ordinarily sits, unless no such other room is available and suitable.

(2) No person shall publish by radio or in any document produced by printing or any other method of multiplication the name, address, school or any other information likely to reveal the identity of any child who is or was concerned in any proceedings in a children’s court: Provided that if the Minister or if the commissioner who presides or presided at such proceedings is of the opinion that such publication would be just and equitable and in the interest of any particular person, he may by order dispense with the prohibition of this subsection to such an extent as may be specified in the order.

(3) At any sitting of a children’s court no person shall be present unless his presence is necessary in connection with the proceedings of that court, or unless he is a parent or the guardian or a person in loco parentis of a child whose presence is necessary as aforesaid (or the attorney or counsel of such a child, parent, guardian or person in loco parentis) and he is present with that child, or unless the commissioner presiding at that sitting has granted him permission to be present.

(4) On the application of a children’s court assistant mentioned in section seven the clerk of the children’s court to which that assistant is attached shall subpoena any witness to give evidence or to produce a book or document at any proceedings of that court.

(5) On the application of any person who is likely to be affected by any order which may be made by a children’s court as a result of any proceedings therein (or on the application of the representative of such a person) the clerk of a children’s court shall subpoena any witness to give evidence or to produce a book or document at those proceedings.

(6) Any such subpoena shall be served upon the witness concerned mutatis mutandis as if it were a subpoena to give evidence or to produce a book or document at a criminal trial in a magistrate’s court.

(7) The provisions of sections two hundred and eleven, two hundred and twelve and two hundred and nineteen of the Criminal Procedure Act, 1955 (Act 56 of 1955), shall mutatis mutandis apply in connection with a person subpoenaed under subsection (4) or (5) of this section or required by a commissioner of child welfare to give evidence at any proceedings in a children’s court.

(8) A parent or the guardian or custodian of a child concerned in any proceedings in a children’s court, who has attended those proceedings, and any person who has attended any such proceedings to give evidence or to produce a book or document shall be entitled to such an allowance as would be due to him if he had attended to give evidence or to produce a book or document at a criminal trial in a magistrate’s court: Provided that all allowances payable to witnesses who were subpoenaed to attend or who were called at proceedings in connection with an application for an order for the adoption of a child and all expenses incurred in securing the attendance of such witnesses shall be paid by the applicant for that order: Provided further that such a parent or guardian or custodian, or a witness who was subpoenaed to attend on the application of any person other than the children’s court assistant (or on the application of the representative of such a person) or who was called as a witness by such a person or his representative, shall not be entitled to any such allowances from public funds unless the commissioner who presided at those proceedings has directed that he be paid such an allowance as aforesaid or any part of such an allowance as the commissioner may have determined.

Section 30. Bringing children before children’s court and holding of enquiries

(1) Any child alleged to be a child in need of care, may be brought before the children’s court of the district in which the child resides or happens to be by any policeman, probation officer or authorized officer or by a parent, guardian or other person having the custody of the child.

(2) The court before which a child is brought under subsection (1) shall hold an enquiry and determine whether the child is in need of care: Provided that if the child ordinarily resides in a district of another children’s court the firstmentioned court may refer the enquiry to the court of that other district.

(3) Any children’s court holding an enquiry as to whether any child is in need of care, may, at any time during the enquiry, order any medical officer in the service of the Government or of the Administration of the territory to examine that child.

[Subsec (3) substituted by sec 9 of Act 74 of 1973.]

(4) If it appears to a children’s court that a child who is alleged to be a child in need of care, and who is subject to the court’s jurisdiction, should by reason of his infancy, ill-health or other sufficient cause not be brought before the court, the court may bold the enquiry in the absence of the child.

Section 71. Adoption orders

(1)(a) The adoption of a child shall be effected by the order of the children’s court of the district in which the adopted child resides, granted on the application of the adoptive parent or parents.

(b) In considering any such application the children’s court shall have regard to all the matters mentioned in subsection (2) of section thirty five.

(2) Save as provided in section seventy-two, a children’s court to which application for an order of adoption of a child is made shall not grant the application unless the court is satisfied-

(a) that the applicant is or that both applicants are qualified to adopt the child; and

(b) that the applicant is or that both applicants are of good repute and a person or persons fit and proper to be entrusted with the custody of the child and possessed of adequate means to maintain and educate the child; and

(c) that the proposed adoption will serve the interests and conduce to the welfare of the child; and

(d) that consent to the adoption has been given-

(i) by both parents of the child, or, if the child is illegitimate, by the mother of the child, whether or not such mother is a minor or married woman and whether or not she is assisted by her parent, guardian or husband, as the case may be; or

(ii) if both parents are dead, or, in the case of an illegitimate child, if the mother is dead, by the guardian of the child; or

(iii) if one parent is dead, by the surviving parent and by any guardian of the child who may have been appointed by the deceased parent; or

(iv) if one parent has deserted the child, by the other parent; or

(v) if one parent is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955 (Act 56 of 1955), been declared an habitual criminal, by the other parent; or

(vi) if one parent is dead and the surviving parent has deserted the child or is as a result of mental disorder or defect incompetent to give consent to the adoption of the child or has in terms of section three hundred and thirty-five of the Criminal Procedure Act, 1955, been declared an habitual criminal, by any guardian of the child who may have been appointed by the deceased parent; and

(e) that the child, if over the age of ten years, consents to the adoption; and

(f) in the case of a child born of any person who is a South African citizen, that the applicant or one of the applicants is a South African citizen resident in the Republic: Provided that the provisions of this paragraph shall not apply-

(i) where the applicant or one of the applicants is a South African citizen or a relative of the child and is resident outside the Republic; or

(ii) where the applicant is not a South African citizen or both applicants are not South African citizens but the applicant has or the applicants have the necessary residential qualifications for the grant to him or them under the South African Citizenship Act, 1949 (Act 44 of 1949), of a certificate or certificates of naturalization as a South African citizen or South African citizens and has or have made application for such a certificate or certificates, and the Minister has approved of the adoption.

[Para (f) substituted by sec 10 of Act 50 of 1965.]

(3) The consent mentioned in paragraphs (d) and (e) of subsection (2) shall be in writing and shall, if given within the Republic, be signed by the person or persons giving the consent in the presence of a commissioner of child welfare, who shall attest the consent, or, if given outside the Republic, shall he signed and attested in the manner prescribed and any such consent shall be filed with the records of the application and shall further set out the names of the proposed adoptive parents: Provided that the court on application by them and on proof to its satisfaction that the parents or guardian of the child consents to the non-disclosure to them or him of the identity of the applicants and that the interests of the child will be served thereby may with the approval of the Minister admit as satisfying the requirements of paragraph (d) of subsection (2) a consent which does not set out the names or any other particulars of the proposed adoptive parents: Provided further that the court shall admit as satisfying the requirements of paragraphs (d) and (e) of subsection (2), a consent given outside the Republic which has not been signed or attested in the manner prescribed or which does not set out the names or any other particulars of the proposed adoptive parents, if that consent has been approved of in writing by the Minister for the purposes of this section.

(4) For the purposes of subparagraphs (v) and (vi) of paragraph (d) of subsection (2) a parent shall not be regarded as being incompetent as a result of mental disorder or defect unless the court is satisfied that the condition of mental disorder or defect is likely to be permanent.

(5) If the applicant for an order of adoption of a child is such a person as is described In paragraph (c) or (d) of subsection (1) of section seventy, the court shall not grant the order unless it is satisfied that the condition of mental disorder or defect of the applicant’s spouse or the separation between the applicant and his spouse, as the case may be, is likely to he permanent.

(6) The court may take evidence on oath either by affidavit or viva voce concerning any matter as to which it is required by this section to satisfy itself, or concerning any other matter which may appear to it to be relevant.

(7) Before dealing with an application for an adoption order, the court to which the application was made, may direct that the applicant deposit with the clerk of the court a sum of money sufficient to cover all the expenses and allowances which the applicant may have to pay under subsection (8) of section eight.

(8) A court may, on the application of the adoptive parent or adoptive parents of an adopted child, correct any obvious error in an adoption order made under subsection (1).

---