Women and Justice: Court: Supreme Court of Namibia

Domestic Case Law

Chairperson of the Immigration Selection Board v. E.F. and Another Supreme Court of Namibia (2001)

Gender discrimination, LGBTIQ

The respondent, a German national, was denied permanent residence in Namibia despite being in a committed relationship with a Namibian woman, residing in Namibia for many years, and having a highly skilled job in Namibia. The respondent claims that the only reason her application was denied is because she was a lesbian woman in a homosexual relationship. She therefore filed suit against the Immigration Selection Board (“ISB”), arguing that it had discriminated against her in denying her application. The lower court found in favor of the respondent and ordered the ISB to grant the respondent’s application. On appeal, the Supreme Court reversed the decision, finding that the respondent had not proven discrimination and that the ISB had wide discretion to deny applications. However, the Supreme Court judge explicitly stated: “I must emphasize in conclusion: Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprive [sic] them of the protection of other provisions of the Namibian Constitution.”

The State v. Vries Supreme Court of Namibia (2001)

Sexual violence and rape, Statutory rape or defilement

The accused was charged with raping a 10-year-old girl (the “complainant”). The trial judge convicted the accused of attempted rape, finding that the prosecution did not prove penetration beyond a reasonable doubt. The prosecutor was not satisfied with the sentence and appealed to the Supreme Court, seeking a conviction for rape. The Supreme Court agreed with the trial court that penetration had not been proven beyond a reasonable doubt. However, the Supreme Court stressed that the slightest unwanted penetration of a woman’s genitalia by a man’s genitalia is sufficient to constitute the crime of rape.

H.D. v. The State Supreme Court of Namibia (2018)

Statutory rape or defilement

The appellant was charged with the rape and indecent assault of a three-year-old girl (“the complainant”). He pled “not guilty” to both counts but was convicted on the first count and sentenced to 14 years’ imprisonment. The trial court acquitted the appellant on the second count. On appeal, the appellant argued that (a) the charge did not contain adequate particulars of the date and time of the alleged crimes; (b) the degree of the injuries to the complainant made it doubtful that he could have raped her; and (c) the cautionary rule was not correctly applied when the trial court reviewed the complainant’s evidence. The Supreme Court confirmed that the trial court was not only aware of the risks associated with the evidence presented by a sole young witness, but also exercised appropriate caution in considering the complainant’s evidence. It further found that the evidence presented at trial, including testimony by the complainant’s mother and older sister provided sufficient details to uphold the conviction. The appeal was accordingly denied.

Paschke v. Frans Supreme Court of Namibia (2015)

Gender discrimination, Property and inheritance rights

The respondent in this appeal is the biological daughter of the deceased. The respondent’s mother was not married to the deceased, and thus, the respondent was considered an “illegitimate child” under Namibian law. The appellant is the sister of the deceased and the respondent’s aunt. The deceased died intestate on May 30, 1991, and his estate was administered per Namibian law on intestate succession. Because the respondent was classified as an illegitimate child, she was not entitled to inherit from her father’s estate. The respondent challenged the constitutionality of this common-law rule, which the High Court had declared unconstitutional in July 2007. The Supreme Court confirmed the High Court’s finding.

E.S. v. A.C. Supreme Court of Namibia (2015)

Gender discrimination

The appellant, E.S., was a 38-year-old mother of three. She was practicing Jehovah’s Witness who consistently maintained that blood transfusions were against her religion. She told her obstetrician at her last pre-delivery appointment that she would refuse a blood transfusion if complications arose during delivery. After that appointment, E.S. gave her husband, also a Jehovah’s Witness, Durable Power of Attorney for Health Care. Nonetheless, her brother, A.C., filed an ex parte application to serve as her “curator to the person,” for the purpose of authorizing medical procedures on E.S., including blood transfusions after she suffered complications including a hysterectomy after giving birth. In support of his application, E.S.’s brother argued that, as a parent, E.S.’s individual autonomy had to be weighed against the interests of her family.  He also offered testimony from her doctor, who explained that her blood and oxygen levels were too low to support full brain function. The trial court granted the application. The Supreme Court addressed three issues: whether the matter was moot after E.S.’s medical recovery, whether the lower court erred in granting A.C.’s application to be appointed his sister’s curator and have blood transfusions administered, and whether young children’s right to be raised by their parents supersedes the right of an individual to refuse a blood transfusion in life-threatening circumstances.  The Supreme Court reversed the lower court, finding that “written advanced directives which are specific, not compromised by undue influence, and signed at a time when the patient has decisional capacity construe clear evidence of a patient’s intentions regarding their medical treatment” (¶56) and “the right to choose what can and cannot be done to one’s body, whether one is a parent or not, is an inalienable right” (¶ 71).  The court made clear that a woman’s status as a mother does not restrict her right to liberty and privacy, especially where decisions of medical treatment are involved.  

Government of the Republic of Namibia v. LM and Others Supreme Court of Namibia (2014)

Forced sterilization

 In 2014, the Supreme Court of Namibia (“Supreme Court”) affirmed the High Court of Namibia’s (“High Court”) decision in LM and Others v. Government of the Republic of Namibia that sterilization procedures require informed consent.  The three respondents sued the Namibian government, alleging that doctors at state hospitals forcibly sterilized them without their consent in violation of their constitutional rights.  They claimed that the forced sterilizations left them unable to bear children, ruined their marriage prospects, constituted discrimination against them based on their HIV status, and caused ongoing pain and suffering. The defendants argued that the plaintiffs’ claims lacked merit because they consented to the procedures. The court found that the alleged “consent” was deficient because the defendants failed to prove that they adequately informed the plaintiffs of the consequences of sterilization, or that the plaintiffs clearly and knowingly consented to the procedures before they went into labor.  However, the Court found no evidence that the complainants were sterilized because of their HIV status and dismissed that claim. Emphasizing the serious personal nature of the decision, the Supreme Court stated that the decision to be sterilized “must be made with informed consent, as opposed to merely written consent” (¶ 3).  The Supreme Court stated that the choice to undergo a sterilization procedure must lie solely with the patient noting that “there can be no place in this day and age for medical paternalism when it comes to the important moment of deciding whether or not to undergo a sterilisation procedure.” (¶ 106).  The Supreme Court also denounced the practice of obtaining “consent” for sterilization during labor noting that patients may not fully appreciate the consequences of giving their consent when experiencing the immense pain involved in labour.  The Supreme Court also agreed with the lower court that plaintiff-respondents did not provide any evidence that they were sterilized because of their HIV status.

S. v. Katamba Supreme Court of Namibia (1999)

Sexual violence and rape, Statutory rape or defilement

The State appeals the decision in the High Court to acquit the accused of all charges of rape and abduction of an 11 year old by taking her away from her guardian with the intent to have sexual intercourse with her.  The Court reversed the acquittal and found the accused guilty on the charges of rape and abduction and affirmed an earlier judgment that the cautionary rule discriminates against women in violation of the Constitution and should only be used at a judge's discretion in extreme cases where there is some valid reason to question a complainant's veracity