Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Namibia (Ratification: 2001)

Other comments on C111

Observation

Direct Request

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Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its previous comment, the Committee requested the Government to provide information on: (1) any legislative amendment in relation with the definition of “sexual harassment” to ensure that it covers all forms of sexual harassment (both “quid pro quo” and “hostile environment” sexual harassment); and (2) the results of the study conducted on harassment and violence in the world of work, and the possible measures adopted in this context to address sexual harassment in employment and occupation. The Committee notes that, in its report, the Government provides the text of a possible amendment to section 5(7)(b) of the Labour Act which would read as follows: “Sexual harassment includes a hostile environment or unwarranted conduct of a sexual nature affecting an employee or employer representative in the context of employment.” The Committee welcomes this information. However, the Government does not provide information on the status of this proposed amendment nor on when it is expected to be tabled in Parliament. The Committee takes this opportunity to recall that the scope of the protection against sexual harassment should cover all employees, male and female, with respect not only to employment and occupation, but also vocational education and training, access to employment and conditions of employment (2012 General Survey on the fundamental Conventions, paragraph 793). As for the scope of protection, it should cover employers, supervisors and co-workers and, where possible, clients or other persons met in connection with performance of work duties, such as, for example, providers, contractors, or patients (see the Committee’s general observation of 2002 on sexual harassment). Regarding the study conducted on harassment and violence in the world of work, the Committee notes the Government’s indication that the study was published in 2019 and found that: (1) the prevalence of violence and harassment in the world of work is high and it negatively affects a large part of Namibia's workforce, and needs to be addressed as a matter of urgency; and (2) cases of violence and harassment in the world of work remain largely unreported, unresolved and unpunished because of a series of reasons, among which: (a) the fact that the Labour Act is not explicit and comprehensive in this regard; (b) unclear and inefficient reporting structures and procedures; (c) the absence of comprehensive workplace policies and reporting structures; (d) a general attitude of shifting blame to the female victims in cases of sexual harassment and victims experiencing a misplaced sense of shame; (e) victims’ fear of retaliation or victimization (such as losing their job) or of not being believed if they report violence and/or harassment, or being unable to prove cases of harassment; (f) limited protection for whistle-blowers and witnesses in laws and policies; and (g) a general acceptance of power inequalities. The Government draws attention to the ratification of the Violence and Harassment Convention, 2019 (No. 190) in December 2020 and the establishment of a tripartite working group to assist in the implementation of Convention No. 190. It also indicates that a training manual was developed and 15 master trainers were trained to train ‘change agents’ who will be responsible for the rolling out of training sessions in their respective workplaces. In view of the above, the Committee asks the Government to provide information on: (i) the state of progress regarding the amendment to section 5(7)(b) of the Labour Act with a view to cover all forms of sexual harassment; and (ii) the concrete measures taken or envisaged to follow-up on the recommendations of the study published in 2019 on harassment and violence in the world of work, especially with regards to sexual harassment.

Sexual orientation. Previously, the Committee asked the Government to provide information on the results of the review of the Labour Act with regard to the protection against discrimination based on sexual orientation, expressing the hope that sexual orientation would be included in the list of prohibited grounds of discrimination in the 2007 Labour Act as it had been the case in the previous 1992 Labour Act. The Committee takes note of the indication by the Government that the Tripartite Task Force recommended that section 5(2) of the Act be amended by inserting “Or any other arbitrary (ground)” so that employees be protected from discrimination on arbitrary grounds not specifically listed in the Act, which, according to the Government, would include discrimination based on sexual orientation. Noting this information, the Committee asks the Government to provide information on the state of progress regarding the amendment to section 5(2) of the Labour Act. In the meantime, it asks the Government to provide information on the number and nature of any complaints or cases of discrimination based on sexual orientation dealt with by the labour inspectorate or the courts, as well as the sanctions imposed and remedies granted.

Discrimination based on race, colour and national extraction. In its previous comment, the Committee drew the Government’s attention to its 2018 general observation on race, colour and national extraction. In that regard, the Committee refers the Government to this year’s observation regarding the application of the Convention. The Committee asks the Government to provide information on the measures adopted or envisaged to: (i) assess the situation in employment and occupation of all ethnic groups and the discrimination faced by them; (ii) redress discrimination based on race, colour and national extraction; (iii) undertake awareness-raising and educational programmes to combat prejudice and stereotypes based on race, colour and national extraction; and (iv) monitor and assess the results achieved.

Articles 1 and 2. Equality of opportunity and treatment of members of indigenous communities. In its previous comment, the Committee asked the Government to provide information on the practical impact of the measures adopted by the Division of Marginalized Communities on the employment situation of members of the indigenous communities, including statistical information on the participation of indigenous workers in employment and various occupations, and earning levels, disaggregated by sex and by sector of activity. The Committee notes the Government’s statement that the Division of Marginalized Communities operates on three strategic pillars, namely: education support, livelihood support and land redistribution, in order to achieve its mandate, which is “to integrate the Marginalized Communities (the San, Ovatue and Ovatjimba Communities) into the mainstream of the Namibian economy”. It also notes that the pamphlet annexed to the Government’s report issued by the Division, while noting achievements attained – notably in education and livelihood support programmes, land redistribution and awareness campaign and public relations – also underlines the recurring challenges in terms of human capacity and financial constraints which limited the implementation of some projects. The Government indicates that the statistical information requested by the Committee on the employment situation of members of the indigenous communities is not available to the Division. The Committee further notes the declaration of the Government, in the national report it submitted to the United Nations Human Rights Council in the context of the Universal Periodic Review, that rights and welfare of indigenous peoples remain a government priority and that, after validation by Government and community representatives, the final draft White Paper on Indigenous Peoples (originally prepared in 2014) had been submitted to the Ministry of Justice for further processing by legal drafters (A/HRC/WG.6/38/NAM/1, 11 February 2021, paragraph 108). The Committee asks the Government to continue to provide information on concrete measures adopted and their impact to support the employment situation of members of indigenous communities. It also asks the Government to put in place measures to collect statistical information on the participation of indigenous workers in employment and various occupations, and earning levels, disaggregated by sex and by sector of activity; and to provide the information collected. Finally, it asks the Government to submit a copy of the White Paper on Indigenous Peoples once finalized and provide information on any follow-up.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes the information provided by the Government in response to its requests in the previous comment. Firstly, regarding the strengthening of the implementation of the affirmative action scheme to increase the participation of women in employment at all levels and in all sectors of activity, the Government indicates that: (1) the implementation of the National Gender Policy (2010-2020) resulted in remarkable progress in making women and the girl child's issues integral to development initiatives at the regional and national levels; (2) the formulation of the new National Gender Policy for 2021-2031 would be finalized this year; and (3) the Government adopted a gender-responsive budgeting approach. Secondly, as regards the improved access of women to productive resources, in particular land and credit, it emphasizes that the Land Resettlement Policy (2018-2027) was developed to address unequal land distribution and designed to benefit those landless Namibians who were previously disadvantaged (minority/marginalized groups, disadvantaged/destitute groups and women). Thirdly, in relation to the promotion of girls and women’s access to and maintenance in education and training with a view to promoting their access to a wider range of fields and occupations, the Government indicates that more girls are enrolling for tertiary education than boys. In terms of the impact of these measures, the Committee notes the Government’s statement that: (1) the Namibian Parliament almost reached gender parity as 46.2 per cent of the seats were held by women in 2018, a continuous increase since 2004 when it stood at 26.4 per cent; and (2) Namibia scored 65.1 for gender parity in the 2020 Ibrahim Index of African Governance Report (based on the 2019 assessment). As regards the latter, the Committee notes that this represents a slight increase (+ 1.7 points) compared to 2010, which puts Namibia at the seventh place among the 54 countries assessed. The Committee asks the Government to provide: (i) concrete examples of the measures adopted in order to increase the participation of women in employment at all levels and in all sectors of activity; (ii) information on the impact of the Land Resettlement Policy (2018-2027) such as, for example, the number of women who benefited from land redistribution since the adoption of the policy; and (iii) information on the type of support provided to women with a view to accessing non-traditional occupations. It asks the Government to provide information on the adoption of the new National Gender Policy for 2021-2031.

Enforcement. Ombudsman. In its previous comment, the Committee asked the Government to: (1) provide information on any activities undertaken by the Ombudsman’s Office to address specifically discrimination in employment and occupation; and (2) collect data on the number of cases brought to the attention of the monitoring and enforcement authorities in relation with discrimination in employment and occupation. The Committee notes the Government’s indication that it will provide information on the outcome of the envisaged collaboration between the Ombudsman and the Ministry of Labour in due course. As regards the number of reported cases of discrimination in employment, the Office of the Labour Commissioner recorded eight cases since 2009 (including five cases in 2021), whereas no case was recorded by the courts for the past three years. In this regard, the Government indicates that it has discussed the enhancement of the case management system for both the Office of the Labour Commissioner and the Employment Equity Commission with the ILO Technical Advisory Mission which took place following the conclusions of the 109th Session of the Conference Committee on the Application of Standards (CAS) in June 2021. The Committee asks the Government to provide information on any progress on the collaboration between the Ministry of Labour and the Ombudsman’s Office in relation to the elimination of discrimination in employment and occupation. It asks the Government to provide information on cases of discrimination in employment and occupation dealt with by the Ombudsman’s Office and the results thereof.