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LAC Concerned About Growing Child Sexual Abuse
Release date: FRIDAY, 4 FEBRUARY 2005

The Legal Assistance Centre is deeply concerned about the growing problem of child sexual abuse in Namibia – not just the high profile cases which have occupied national attention in the last week, but also the multitude of cases of child rape which take place on a horrifyingly regular basis.

The Namibian Government is to be commended for enacting the Combating of Rape Act of 2000 with its progressive procedures and stiff sentences for rape. But the case, in which Justice Pio Teek is charged with multiple counts of violence against minors, highlights the fact that the provisions of this law are not always observed in practice.

The Combating of Rape Act stipulates that the complainant in a rape case must receive official notification of the bail proceedings in a rape case. The complainant has a right to be present at the bail hearing so that he or she can give the court information about threats made by the accused or call attention to any other reasons why bail should be denied. If the court is not satisfied that the complainant has received notice of the date, time and place of the bail application, it is expected to postpone the bail proceeding until notice is properly given (unless the interests of justice dictate otherwise).

In the case at hand, we have information that at least one of the complainant’s mother feared that Justice Teek would attempt to contact the family directly or indirectly if he were released on bail. The prosecutor told the court of her fears, but felt that stringent bail conditions would be sufficient to deal with them.

The prosecutor may have been right about this, but the court would have been in a better position to make a decision if the mother had been given a chance to explain her fears to the court in more detail. She wanted to put her concerns before the court, but despite the procedures set forth in the law, she was not given the chance to exercise her right. If the criminal justice system does not apply the laws passed by Parliament to combat rape consistently and correctly, how can those laws serve their intended purposes?

The deeper problem, of course, is the fact that child sexual abuse is occurring on such a large scale in Namibia.

We should all be asking ourselves WHY? Surely no one is going to argue that children of ages like 6, 9 or 10 “seduced” their abusers. Surely no one will try to pull out the tired old justifications that these children wore provocative clothing or somehow “asked for it” in any way.

The rape and sexual abuse of children strips bare the usual excuses which are put forward for sexual violence.

What is wrong with our society?

The Legal Assistance Centre calls on government to take the following actions, with which we stand ready to assist:

  • We suggest that the government fund and commission a detailed study which investigates the motives and the psychology of the perpetrators of child rape in Namibia. We can no longer rely on theories about this crime from other societies. We need to understand the dynamics at work in our own country.
  • We call on high-profile politicians to embark upon a nationwide publicity campaign against child sexual abuse. Some leaders have set a bad example for our youth – where are those leaders who will provide the counterpoint by taking prominent action against violence against women and children?

We know that there are many men who care. Our President has shown us the way by consistently speaking out against such violence since Independence. Groups such as NAMEC and the White Ribbon Campaign have mobilised many men to speak out. But these efforts need to be strengthened and multiplied as matter
of urgency. The nation’s leaders should lead our society in a campaign against child sexual abuse which is so widespread and so intense that it cannot be ignored.

It is a trite saying that “our children are our future”. If we do not turn this tide of child rape, then where exactly is our nation headed?

RELEVANT PROVISION OF COMBATING OF RAPE ACT

60A. (1) A complainant of rape shall have the right -

(a) to attend any proceedings where the question is considered whether an accused who is in custody on a charge of rape should be released on bail or, if bail has been granted to the accused, whether any further conditions of bail should be imposed under section 62 or whether any such conditions of bail should be amended or supplemented under section 63; and

(b) to request the prosecutor in proceedings referred to in paragraph

(a) to present any information or evidence to the court that might be relevant to any question under consideration by the court in such proceedings.

(2) If an accused is in custody on a charge of rape, the person in charge of the police station or any other place where the accused is detained in terms of section 50 (1), or any other person designated by such first-mentioned person, shall as soon as possible inform the complainant concerned of –

(a) the place, date and time of the first appearance of the accused in court; and

(b) the rights of the complainant under subsection (l).

(3) If an accused who is in custody on a charge of rape intends to apply to the court for bail on a date or at a time of which the complainant has not been otherwise informed in terms of this section, the accused or his or her legal representative shall request the person referred to in subsection (2) to inform the complainant accordingly, whereupon such person shall so inform the complainant.

(4) The person who informs, or who is required to inform, the complainant in terms of subsection (2) or (3), as the case may be, shall prepare an affidavit stating –

(a) whether the provisions of subsection (2) or (3) as the case may be, have been duly complied with and, if they have not been so complied with, the reasons for not complying with any such provision;

(b) the manner in which the complainant has been so informed; and

(c) the date and time when the complainant has been so informed.

(5) An affidavit prepared in terms of subsection (4) shall be handed to the judge or judicial officer presiding at the proceedings at which bail is considered, and such affidavit shall form part of the record of such proceedings.

(6) If a complainant is present at the proceedings at which bail is considered in respect of an accused who is in custody on a charge of rape, and such proceedings are postponed, the court shall inform the complainant of the date and time to which such proceedings have been postponed and of the complainant’s rights under subsection (1).

(7) If a complainant is not present at proceedings referred to in subsection (6), the court shall enquire into the question whether the complainant has had knowledge of such proceedings, and –

(a) shall, if it is satisfied that it is likely that the complainant has had knowledge of such proceedings, direct that the matter be dealt with in the absence of the complainant; or

(b) shall, if it is not so satisfied, postpone such proceedings in order to obtain the presence of the complainant: Provided that, if it is in' the interests of justice (with due regard to the interests of the complainant) that the matter be dealt with forthwith, the matter may be dealt with in the absence of the complainant.

(8) If a complainant is not present, as contemplated in subsection (7), the prosecutor in such proceedings shall inform the complainant –

(a) where bail has been granted to the accused, of the granting of bail and the conditions of bail imposed;

(b) where such proceedings have been postponed, of the date and time to which such proceedings have been postponed and of the complainant’s rights under subsection (1).

(9) The provisions of subsections (4) and (5) shall, with the necessary changes, apply in respect of a notification given in terms of subsection (8)(b).”

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