CHILDREN'S LEGISLATION
GENDER RESEARCH & ADVOCACY PROJECTGENDER-RELATED LEGISLATION PASSED IN 2006
Parliament passed very few pieces of legislation in 2006. The only new law directly addressing gender matters was the Children’s Status Act 6 of 2006 which was passed by parliament but not yet in force as of 2008.The Children’s Status Bill, first tabled in Parliament in 2003, continued in 2006 to invoke debate on who should have custody of children born outside marriage.
Currently, mothers have sole custody and guardianship of such children and fathers have no clear rights – not even a right to access. This position is clearly unfair to both parents and children. However, the competing rights of single mothers and single fathers under the proposed laws proved to be a highly contentious issue.GR&AP’s initial position, developed in consultation with the broader NGO community, was that single mothers should have custody as a starting point (to mirror the current social reality), with single fathers having an automatic right of access and the ability to apply to a children’s court for custody of the child in a simple low-cost procedure, with the decision to be determined solely in accordance with the best interests of the child.
This position was adapted in consultation with other NGOs when it became clear that Parliament would not accept the approach initially proposed. As a compromise position we proposed that cohabiting parents should be able to agree to joint custody and equal guardianship if they wish – like married parents. Otherwise, one parent would have to take primary responsibility for the daily care of the child while the other would have access rights – like divorced parents.
The parents could agree in writing on who would act as the primary custodian, or refer the matter to a children’s court for decision.
As a default position, the mother would be the child’s temporary custodian – since only the mother (for obvious biological reasons) would definitely be present at the birth. This fall-back position was intended to protect the child as an interim measure, without prejudicing either parent.
- In 2006 lobbying on this Bill was one of GR&AP's key activities. GR&AP kept in regular contact with a wide range of NGOs to get support for group submissions to the parliamentary committees dealing with the Bill, and all key strategies were decided upon in consultation with the broader NGO community.
- In 2007 GR&AP hosted a 1.5 day workshop on the Children’s Status Act 6 of 2006 (which is not yet in force). Participants included representatives of the Ministry of Gender Equality and Child Welfare, Ministry of Health and Social Services, Law Reform and Development Commission and the Master’s Office plus a range of NGOs.
This workshop was very successful. The Act was explained in detail, and participants suggested strategies for making its implementation successful, such as matters which need to be carefully covered in the regulations.
Recommendations from the workshop were compiled and sent to the Ministry of Gender Equality and Child Welfare, the Master of the High Court and the technical legal drafters at the Ministry of Justice. GR&AP attended a meeting convened by the Ministry of Gender Equality and Child Welfare to discuss the regulations in April. GR&AP also prepared a memorandum for the Ministry of Gender Equality and Child Welfare on the forthcoming regulations, based on the input received at the workshop. GR&AP also identified a consultant who has drafted children’s regulations in other countries in the region who can provide technical assistance to the Namibian government on the Namibian regulations.
THE CHILD CARE AND PROTECTION BILL
GR&AP is monitoring the progress of the Child Care and Protection Bill which is currently with the technical legal drafters. We understand that the draft will be finalised at long last in early 2008, and we have written to the Ministry of Gender Equality and Child Welfare to advocate another round of public consultations before the Bill is sent to Cabinet. We have offered to assist the Ministry with simplified materials and workshop facilitation for this purpose. This suggestion has been well-received by the Ministry, and will be followed up in 2008.This Bill has been under discussion since 1994. GR&AP will make it a focus of increased lobbying in 2007 now that the Children’s Status Act is in place.
The Child Care and Protection Bill is expected to replace the outdated Children's Act of 1960 which Namibia inherited at independence. The new law will deal with child abuse and neglect, adoption, children's courts, children's homes, places of safety and vulnerable groups such as street children and child prostitutes. On the issue of child abuse, the Bill will give increased emphasis to preventative measures which could avert problems at an early stage. The bill should give concrete content to the notion of the best interests of the child.
In 1994, the Ministry of Health & Social Services commissioned the Legal Assistance Centre and the Human Rights and Documentation Centre to prepare draft children's legislation, including a Child Care and Protection Bill. As with the Children’s Status Bill, the original draft was revised by a Task Force of persons with expertise in children's issues, including representatives from the GR&AP.
By 2005, the Bill had still not been introduced into Parliament, delayed due to drafting issues in the part of the government.