Legal Assistance Centre-Namibia

OTHER FAMILY LAW ISSUES
GENDER RESEARCH & ADVOCACY PROJECT

DIVORCE:
In 1997, GR&AP began a combination of field research and comparative law research into the general law of divorce, with a view to advancing reform of Namibia's antiquated system. The report on its findings, entitled Proposals for Divorce Law Reform in Namibia, was launched in July 2000 with a press release. The report includes a Draft Divorce Act, and is accompanied by a brief summary designed to facilitate public education around the issue which has been disseminated widely to interested persons and groups. The GR&AP proposals were used as the basis for deliberations by a subcommittee of the Law Reform and Development Commission on divorce, which included Dianne Hubbard of GR&AP.

At the end of 2003, the subcommittee's recommendations were being refined on the basis of comments from key stakeholders. In 2004, the GR&AP attended meetings with the Commission and assisted them with the finalization of the bill and the accompanying explanatory memorandum.

The Law Reform and Development Commission developed a draft Divorce Act based on the work of the subcommittee. During 2006, the GR&AP is in the process of collecting public feedback on this draft Act, particularly from rural areas.

CUSTOMARY MARRIAGES :
Customary marriages are not generally recognised under current Namibian law, although they have been granted statutory recognition for specific purposes. In recognition of the problems this presents for thousands of Namibians, GR&AP published a background paper in 1999 entitled Proposals for Law Reform on the Recognition of Customary Marriages, which explores Namibia's options in the light of other countries' experiences. The paper was submitted to the Law Reform and Development Commission, which released an official report with law reform recommendations on this topic in 2005.

The Commission proposed a draft bill entitled the Recognition of Customary Marriages Bill. The GR&AP has some concerns about aspects of the draft bill and would seek amendments if it goes forward as it stands. In 2006, the GR&AP has been collecting public feedback on the bill, particularly from rural areas, so as to involve more rural men and women in the law reform process.

MARITAL PROPERTY AND COHABITATION:
Since 2001, GR&AP and the Gender Research and Training Unit at the University of Namibia (UNAM) have been working together on research on women and property. The broad results of the field research were published by UNAM in 2004, while in 2005 GR&AP published a companion report focusing on comparative law and law reform recommendations.

Reform on this aspect of family law is needed in Namibia because many people in hybrid marriages that combine both civil and customary aspects of marriage are negatively affected by the current law. Because outdated apartheid legislation remains in force in some parts of the country, racial discrimination continues to play a role in marital property regimes for some couples. The laws which apply racially-based rules are in urgent need of repeal.

Reform is also needed in the area of informal cohabitation, as this type of relationship is becoming increasingly common in Namibia, but is almost completely unregulated by law " with the result that women, who are most often the economically more vulnerable parties, can find themselves without any property to call their own when a relationship breaks down after years of joint existence.

In 2003-2004 the GR&AP conducted field research into various aspects of marital property, including: underlying constitutional and policy framework; property systems; civil marriages; related property issues; and customary marriages. This research was published as Marital Property in Civil and Customary Marriages: Proposals for Law Reform.

In 2007, the Legal Assistance Centre commissioned a study to examine gender equality in land rights and tenure security in the four regions of north-central Namibia. To date been no assessment of the implementation of the The Communal Land Reform Act 5 of 2002 and its impact of the legal provisions pertaining to women, in particular, widows. To fill this gap, This study investigates the extent to which the provisions of the Communal Land Reform Act are known to women and if, so, whether they are able to claim their rights as stipulated in the Act. The study also investigates a wider range of issues relating to women’s land rights and rights of inheritance, including the following:

Are widows under family or social pressure to refuse allocation of their deceased husband’s land, and if so, who exercises this pressure?

What happens in the event of a widow not electing to stay on the land or when there is no widow to inherit the land? What are the possible gender implications of land going to the children of the deceased identified by traditional leaders?

How are polygamous marriages dealt with since the CLRA does not specifically provide for this?

Are Communal Land Boards and Traditional Authorities supportive of widow’s rights and are they able to enforce the provisions of the law?

Are widows being charged for reallocation, and if so, how does the payment compare to normal land allocation fees?

What happens to land rights when a widow who inherited the land rights of her deceased husband remarries?

The study draws on published literature on gender rights to land and inheritance, complemented by case studies and in-depth interviews with key stakeholders and focus group discussions in the north-central regions. It points to recommendations for improved implementation of the Communal Land Reform Act as well as other reforms which are necessary to advance gender equality in respect of land and other economic resources.

GR&AP worked together with LEAD to develop terms of reference for this research. The field research was carried out during 2007 by consultant Wolfgang Werner. GR&AP and LEAD reviewed several successive drafts of the research report and assisted the consultant in the formulation of recommendations based on the research findings. The report will be finalised and launched in early 2008.

GR&AP and the government’s Law Reform and Development Commission have engaged in discussions about joint effort to complete the cohabitation research begun by GR&AP, which had to be put side for lack of funding. GR&AP presented a draft proposal and budget to LRDC for consideration. In the meantime, students in a faculty-supervised programme at the University of Pennsylvania Law School are working with a previous GR&AP intern to conduct additional comparative law research on cohabitation to feed into our existing material on this topic, with the goal of finalising a report on this topic in 2008.

The GR&AP Coordinator continues to serve on the LRDC Subcommittee on Marital Property, which is using the GR&AP publication Marital Property in Civil and Customary Marriages: Proposals for Law Reform as it main resource. The subcommittee completed the first phase of its work in 2007, by deciding on detailed policy on marital property law reform, based primarily on GR&AP’s research and recommendations. The Coordinator worked together with attorney Hannalie Duvenhage to draft a bill incorporating the Subcommittee’s input for further discussion. This draft bill will be finalised and presented to the full subcommittee in early 2008.

Marriage and inheritance:
The GR&AP has conducted field research on inheritance which has led to a range of recommendations on law reform in this area.

The GR&AP engaged in an extensive programe of in-depth field research into inheritance. The study contrasted a patrilineal system, a matrilineal system and a double descent system. The results of this research were published in Customary Laws on Inheritance in Namibia: Issues and questions for consideration in developing new legislation .

Research into inheritance carried out by other academics was presented in an accessible form in The Meanings of Inheritance: Perspectives on Namibian Inheritance Practices.

Various options for reform were discussed with representatives of different interests groups from all over the country at a workshop in Windhoek, supplemented by community consultations in various locations. The discussions were summarized for policy-makers in Inheritance Issues: Information and feedback from community consultations on inheritance law reforms.

In the 2003 Berendt case, the High Court invalidated portions of the 'Native Administration Proclamation 15 of 1928', a law which is surprisingly still in force in post-independent Namibia. The Court found that several sections of the Act were unconstitutional violations of the prohibition on racial discrimination of Article 10. These complicated provisions treated the estates of deceased blacks as if they were "Europeans" in some circumstances, while requiring in other circumstances that they should be distributed according to "native law and custom" . The Court also struck down the legal provision which gives magistrates the power to administer "black estates' while other estates go to the more specialized jurisdiction of the Master of the High Court.

Parliament was given the deadline of 30 June 2005 to replace these offensive sections with a new system. This deadline was extended to 30 December 2005.

In February 2005, the Law Reform and Development Commission circulated a draft bill on succession. The bill was quickly rejected by the Ministry of Justice, which circulated an alternative bill in April 2005. The GR&AP made submissions on the shortcomings of the alternative bill, particularly concerned that the proposal essentially discarded customary law approaches, and it was later rejected.

Just before the end of 2005, Parliament passed a law intended to comply with the court order in Berendt. However, the law was very strange. It said that the portions of the racially-based laws were unconstitutional and repealed, but that the laws will continue to apply in force as if they had not been repealed. The GR&AP is continuing its advocacy and lobbying around the inheritance issues. The GR&AP is of the position that:

The unconstitutional aspects of the law on inheritance must be changed;

Wills should be respected;

The laws on inheritance should ensure that the deceased's dependents are provided for;

All wives in a polygamous marriage should share in the estate where their husband dies; and

Property grabbing should be stopped.

Equality in marriage:
The Married Persons Equality Act, passed in 1996, was instrumental in abolishing the unconstitutional marital powers of the husband and placing husbands and wives in Namibia on equal footing. Men and women who are married in civil marriages in community of property must now consult each other on all important financial transactions, as equal partners. To explain how the new system works, the GR&AP has published a detailed Guide to the Married Persons Equality Act as well as a shorter Summary to the Act. These publications are available in English, Afrikaans, Khoekhoegowab, Oshindonga, Otjiherero, Rukwangali and Silozi.

Other family-related law reforms
NANGOF Gender Sector convened a meeting of its members on 11 September, facilitated by GR&AP, to discuss family-related law reforms which are very slow in moving forward. The meeting was attended by representatives of 13 organisations.It was decided that a delegation representing the NANGOF Gender Sector will attempt to meet with the Minister of Justice and the Minister of Gender Equality and Child Welfare to find out what is the cause of the slow progress of law reform on divorce and customary marriage. The problem of lack of official recognition of customary marriage was mentioned by the CEDAW Committee when Namibia made its initial report in 1997, and again in response to Namibia’s combined second and third reports in 2007. GR&AP provided background information on these topics which can be drawn on by journalists. Although GR&AP provided all of the materials and support which were agreed, the NANGOF Gender Sector did not manage to move forward with the proposed activities in 2007 but has agreed to make these a priority in 2008.