The 1990 Constitution of the Republic of Namibia stipulates that the right to life "shall be respected and protected".Art. 6, 1990 Constitution of Namibia.It further guarantees that the "dignity of all persons shall be inviolable" and explicitly prohibits torture or other forms of cruel, inhuman or degrading treatment or punishment.Art. 8(1) and (2)(b), 1990 Constitution of Namibia.
According to Article 21(1)(d), all persons shall have the right to "assemble peaceably and without arms".
The Namibian Police Force was established by the Constitution:
There shall be established by Act of Parliament a Namibian police force with prescribed powers, duties and procedures in order to secure the internal security of Namibia and to maintain law and order.Art. 115, 1990 Constitution of Namibia.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||Not party|
1998 Rome Statute of the International Criminal Court
|1981 African Charter on Human and Peoples' Rights||State Party|
|1998 Protocol to the African Charter on the African Court||Signatory|
|Article 34(6) declaration regarding individual petitions||N/A|
|Malabo Protocol on Amendments to the African Court of Justice and Human Rights||Not party|
Police Use of Force
The actions of the Namibian Police Force are generally regulated by the 1990 Police Act (as amended through 2005). The Police Act allows any police officer to use
such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of an offender or suspected offender or persons unlawfully at large.S. 14(10), 1990 Police Act (as amended through 2005).
The Police Act does not, though, regulate the use of firearms. Also in force, though, is the 1977 Criminal Procedure Act, which provides that a police officer that attempts to arrest a suspect who
(a) resists the attempt and cannot be arrested without the use of force; or
(b) flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees,
may "use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing".S. 49(1), 1977 Criminal Procedure Act.
Where the suspect is to be arrested for a range of offences (including theft, fraud, or sodomy) or is to be arrested on the ground that he is reasonably suspected of having committed such an offence, and the police officer
cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide.S. 49(2), 1977 Criminal Procedure Act.
This is considerably more permissive than is allowed under international law, which requires that the use of firearms be proportionate to the threat. Firearms may only be used where necessary in the circumstances to prevent an imminent threat of death or serious injury or a proximate threat to life. Thus, for example, the Legal Assistance Center of Namibia believes the 1977 Criminal Procedure Act is in conflict with the protection afforded to the right to life by the Namibian Constitution.
Also of great concern is the 1989 Public Gatherings Act. Under Section 6 of the Act, firearms "or other weapons likely to cause serious bodily injury or death" may be used to disperse a public gathering after less-lethal weapons have failed to achieve that objective "or unless or until" any persons attending the assembly:
(a) kill or seriously injure any person, or attempt or show a manifest intention of doing so; or
(b) destroy or do serious damage to valuable property, or attempt or show a manifest intention of doing so.
Under subsection 2,
Firearms or other weapons likely to cause serious bodily injury or death shall be used for the purposes aforesaid with all reasonable caution, without recklessness or negligence, and so as to produce no further injury to any person than is reasonably necessary for the attainment of the object aforesaid.
Use of Force in Custodial Settings
According to the 2012 Correctional Service Act, a "correctional officer may use such force against an offender as is reasonably necessary to ensure compliance with lawful orders or to maintain discipline in the correctional facility".S. 35(1), 2012 Correctional Service Act.A correctional officer may use a weapon against -
(a) any offender who is -
(i) escaping or attempting to escape from lawful custody;
(ii) engaged in forcing or breaking open or attempting to force or break open or is scaling a correctional facility door, wall, fence, gate, or other part of the correctional facility;
(iii) using or threatening to use violence against a correctional officer or another offender or any other person; or
(iv) engaged in violently disorderly behaviour; or
(b) any person who -
(i) assists an offender in escaping or uses or threatens to use violence against a correctional officer, or an offender or any other person; or
(ii) is engaged in forcing or breaking open or attempting to force or break open or is scaling a correctional facility door, wall, fence, gate, or other part of the correctional facility.S. 35(2), 2012 Correctional Service Act.
The use of the weapon must be necessary and a warning that the weapon is about to be used must be given.S. 35(3), 2012 Correctional Service Act. In addition, it is stipulated that:
Whenever a weapon or force is used in pursuance of this section, the correctional officer must use the minimum force necessary in the circumstances to restrain the act intended, and must, as far as reasonably possible, use such weapon or force to disable and not to kill.S. 35(4), 2012 Correctional Service Act.
These provisions on the use of force and firearms are also considerably more permissive than is allowable under international law.
An Internal Investigation Directorate has been established to investigate allegations of wrongdoing by the Namibian Police Force, though it is not independent and its impartiality has been questioned. In its 2017 Concluding Observations on Namibia, the United Nations Committee against Torture expressed its concern
at the Directorate’s lack of independence. The Committee is also concerned at the lack of information on the number of complaints, investigations, prosecutions and convictions for torture or other cruel, inhuman or degrading treatment or punishment among members of the police force.Committee against Torture, Concluding Observations on Namibia, UN doc. CAT/C/NAM/CO/2, 1 February 2017, §18.
According to the 1990 Constitution of Namibia:
Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom, and may approach the Ombudsman to provide them with such legal assistance or advice as they require, and the Ombudsman shall have the discretion in response thereto to provide such legal or other assistance as he or she may consider expedient.Art. 25(2), 1990 Constitution of Namibia.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on Namibia, the Human Rights Committee expressed its concern at
reports of torture and ill-treatment in police cells and detention facilities, of the use of excessive force against suspects and at:
(a) Reported cases of violence and harassment against lesbian, gay, bisexual and transgender persons by members of the police;
(b) Reports that members of the police force regularly detain and rape sex workers;
(c) The lack of investigation of cases of torture to which persons arrested after the 1999 secession attempt in the former Caprivi region have been subjected;
(d) The lack of any independent mechanism to investigate acts of torture and ill-treatment.Human Rights Committee, Concluding Observations on Namibia, UN doc. CCPR/C/NAM/CO/2, 22 April 2016, §21.
The Committee encouraged Namibia to "adopt legislation on prevention and combating of torture, and provide training to all relevant professionals, including police and prison guards on its provisions" and to:
(a) Ensure that perpetrators of torture and ill-treatment are identified, prosecuted and tried before ordinary courts, and, if found guilty, punished and victims adequately compensated;
(b) Ensure that all cases of torture and ill-treatment are properly investigated by an independent mechanism.Human Rights Committee, Concluding Observations on Namibia, UN doc. CCPR/C/NAM/CO/2, 22 April 2016, §22.
Namibia is not yet a state party to the Protocol that establishes the jurisdiction of the African Court of Human and Peoples' Rights to hear cases relating to Namibia.
In July 2016, it was reported that 34 police officers were facing murder charges while a further 84 had been charged with attempted murder. The cases were opened between 2010 and 2016. Statistics released by the head of the Internal Investigative Unit, Commissioner Christoph Nakanyala, revealed that of 118 shooting incidents involving police officers recorded in 2010 to 2016 34 were subsequently cases that resulted in murder charges being laid against one or more police officers.
A report published by the Namibia Institute for Democracy in April 2018 stated that the general requirement that applicants to the Police Force may not have a criminal record is
relaxed for members of the Special Field Force (SFF), a Namibian paramilitary police unit created in 1995. The SFF is primarily made up of ex-combatants from the former People’s Liberation Army of Namibia (PLAN). It was created as one of the employment strategies of the government in reaction to sustained public demonstrations by the demobilised ex-combatants. The primary responsibilities of the SFF include crime prevention, law and order, specifically the suppression of illegal civil disobedience, and border protection. ... The general view held by members of the public is that the SFF are the less educated and more brutal wing of the Namibian Police Force. They have been implicated in the intimidation, reported beating and torture, and even murder of civilians. This was especially the case during the unsuccessful secessionist uprising in Caprivi Region in 1998–1999.The Justice Sector & the Rule of Law in Namibia, Namibia Institute for Democracy, April 2018, pp. 10-11.