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

Individual Case (CAS) - Discussion: 2021, Publication: 109th ILC session (2021)

Written information provided by the Government

In terms of the application of Article 1(1)(b) of the Convention on additional grounds, including HIV status, the Committee requested the Government to adopt specific measures to ensure that workers who are victims of discrimination on the basis of HIV status (actual or perceived) have effective access to legal remedies.

Namibia fully recognizes that the information requested is on a purely voluntary basis and should be concerned only with new developments.

The Government of Namibia is committed to eradicating HIV/AIDS as noted by the Committee of Expert in its report that Namibia is the first country in Africa to have more than three quarters of its HIV-affected population virally suppressed.

The Labour Act, Act 11 of 2007, provides for a Dispute Resolution Mechanism for all disputes concerning fundamental rights and protection, which include disputes over employment decisions based on the ground of HIV status. These legal remedies consist of either referring a dispute to the Labour Commissioner for arbitration or approaching the Labour Court for enforcement of alleged infringed rights, or protection or other appropriate relief. It is our belief that the current legal remedies are effective and accessible to victims of discrimination on the basis of HIV status (actual or perceived).

The Committee further requested information on the number of cases of discrimination based on HIV status and on their outcome.

In 2019, one complaint against the Namibian Defence Force (NDF) was received by the Office of the Ombudsman. The complainant alleges that the NDF refused to employ him on grounds of his HIV status. The complainant was contacted by the Office of the Ombudsman to provide further information. The information is yet to be submitted by the complainant. The investigation will commence once the information is submitted.

The Committee asks the Government, in the context of Articles 2 and 5 – lmplementation of the national equality policy and affirmative action, to provide detailed information on the concrete measures taken to implement the action planned in the National Human Rights Action Plan 2015–19, in particular the review of the legislative and regulatory framework, and information on any research undertaken, obstacles encountered and results achieved in this regard. It further asks the Government to indicate what follow-up it gave to the recommendations in the Office of the Ombudsman’s Special Report on Racism and Discrimination and the concrete steps taken to address such discrimination.

The following are the concrete measures taken to implement the National Human Rights Action Plan 2015–19:

The Law Reform and Development Commission initiated a project on Obsolete Laws which resulted in the Repeal of Obsolete Law Act, 2018 (Act No. 21 of 2018). Some of the repealed laws were discriminatory in nature.

The second leg of the project, which researches the existence of other obsolete and discriminatory laws, has been completed and the report was handed to the Minister of Justice for further action. The Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill has been circulated for comments and submissions by stakeholders, and a stakeholders’ consultative meeting is scheduled for 28 May 2021. The Bill repeals the Racial Discrimination Prohibition Act 1991 (Act No. 26 of 1991) and its amendments.

The information on any research undertaken is provided as follows:

The Ombudsman researched the reasons why racism, racial and other forms of discrimination still persist after 27 years of Namibian independence, and made numerous recommendations in his Report on the National Inquiry into Racism, Racial Discrimination and Other Forms of Discrimination and Tribalism. The Report was submitted to the National Assembly in October 2017.

Completed research, stakeholder consultations and the drafting of the White Paper on Indigenous Peoples’ Rights in Namibia. The White Paper is due for Cabinet approval and adoption by the National Assembly.

The Law Reform and Development Commission, in collaboration with the Department of Disability Affairs in the Office of the Vice-President, undertook to first conduct a critical analysis of the current National Disability Legal Framework. The Law Reform and Development Commission will assist in the review of the outdated Disability Council Act of 2004 with its National Disability Policy of 1997 and the domestication of the Convention on the Rights of Persons with Disabilities.

With regard to designated groups, the Committee asks the Government to continue to: step up its efforts to promote access to training and employment opportunities for designated groups and review regularly the affirmative action measures to assess their relevance and impact and to provide information on any measures taken in this regard and the results achieved.

The Affirmative Action (Employment) Act 29 of 1998, which was amended by the Affirmative Action (Employment) Amendment Act 6 of 2007, has provisions requiring relevant employers to institute positive steps to further the employment of persons in designated groups. These measures may include training opportunities and giving preferential treatment in employment decisions to suitably qualified persons from designated groups to ensure that such persons are equitably represented in the workforce.

Section 17(3)(a) and (b) further empowers the Employment Equity Commission in this regard to determine whether a designated group is equitably represented in the various positions of employment offered by a relevant employer, to take into account, in addition to such other factors as it may determine:

(a) the availability of suitably qualified persons in that designated group for such positions of employment; and

(b) the availability of persons in designated groups who are able and willing, through appropriate training programmes, to acquire the necessary skills and qualifications for such positions of employment.

The above is the legislative framework on which the Commission relies on the issue of access to training and employment opportunities for designated groups.

The Government is requested to provide information on any follow-up given to the work of the Employment Equity Commission (EEC) related to the review of the Affirmative Action (Employment) Act, 1998, and on the activities of this Commission.

Amendments to the Act

The amendments had already been finalized and forwarded to the tripartite Labour Advisory Council (LAC), which in turn provided some inputs and returned the Act for their incorporation. The EEC established a task force to attend to the amendments and the final draft amendment Act of the task force was provided to the office of the Employment Equity Commissioner on 11 May 2021. The Office is now conducting a desk study to assess, possibly incorporate and align with international legislation and best practices relating to: (a) training and development of human resources; (b) expatriates and understudy skills transfer; and (c) equal pay for work of equal value.

Reduction of reporting threshold – Increasing relevant employers

In terms of section 20 of the Act and the regulations made thereunder, currently only those employers employing 25 and more employees are regarded as relevant employers and are covered by the Affirmative Action (Employment) Act. The current threshold was established in 2007, but since 1999 the threshold had been those employing 50 and more. The Commission is of the view that it is time to reduce the threshold further to cover more employers and corresponding employees, since the 2018 Namibia Labour Force Survey showed that the number of employers and employees covered is currently too low due to the threshold.

Activities of the Commission

The Commission revised its current 20-year-old standard report content and structure guidelines to place emphasis, inter alia, on access to training. The new guidelines and designed forms require reporting on qualifying as well as non­qualifying training and require employers to institute training measures, coupled with the necessary budgetary allocation for in-house training, bursaries and human resource planning, such as talent management, succession planning, promotions, etc.

Coupled with the newly adopted reporting format, a new review framework called the Integrated Review Scorecard (IRSC), was also developed. This is an internal tool to guide the review of affirmative action reports and plans submitted to the Commission. The Commission has, since its inception, been trying to realize its objects without any objective criteria that could enhance its efficiency and effectiveness in carrying out the range of activities specified in section 4(a)–(f). The above led to a widespread perception that the Commission was issuing AA Compliance Certificates to undeserving relevant employers simply because they submitted AA reports – not because they were implementing affirmative action in the workplace. The above prompted the need to develop and implement an integrated review scorecard. The IRSC is intended to assist the Commission in determining the exact compliance effort each relevant employer is making in the process of implementing affirmative action in his/her/its workplace. Furthermore, the IRSC will assist the Commission in the process of categorizing relevant employers into various compliance categories which in turn can be used for various purposes, such as training; possible charges for non-compliance with the Affirmative Action (Employment) Act; the giving of awards; consideration for state contracts, etc.

The Government is asked once again to provide information on any legislative developments regarding the New Equitable Economic Empowerment Framework Bill 2015.

The Draft Bill is almost ready for Cabinet consideration before it is tabled in the National Assembly in the third or fourth quarter of the 2021–22 financial year.

The Technical Working Committee has been engaged in consultation and it is due to brief the Prime Minister on Monday, 24 May 2021 at 10 a.m. on progress, and also to obtain political direction, if necessary.

Discussion by the Committee

Government representative, Minister of Labour, Industrial Relations and Employment Creation – I thank the Committee for this opportunity to present a response to the Committee of Experts’ observations with respect to Namibia’s implementation of Convention No. 111, which it ratified on 13 November 2001. This is the first time that Namibia has been asked to appear before the Committee.

Before addressing the observations of the Committee of Experts, I want to register my concern with regard to the manner in which the list of individual cases to be considered by the Committee was compiled. According to established criteria, the Committee, when compiling its list, is required to endeavour to achieve a balance of different categories of Conventions and a geographical balance. It is our view that in applying the set criteria, the Committee did not adequately consider geographical balance. As a result, 3 countries from 16 Member States belonging to the Southern Africa Development Community were asked to appear before the Committee in a single session. This is unprecedented.

At the outset, I must bring to the attention of the Committee the historical background of discrimination in Namibia, which forms the context in which Namibia applies the Convention. Namibia, with a present population of approximately 2.5 million people, gained independence in 1990 after a century-long struggle against racism, colonialism and apartheid.

The Namibian Constitution reflects our founding fathers’ and mothers’ determination to eradicate the vestiges of the colonial apartheid system. Article 10 of the Constitution contains a strong prohibition against discrimination on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status. It also includes a unique provision on apartheid and affirmative action, contained in article 23, which requires that the practice of discrimination and the practice and ideology of apartheid shall be prohibited by law.

Article 23 also authorizes the enactment of affirmative action legislation, policies and programmes aimed at redressing social, economic or educational imbalances in Namibian society, arising out of past discriminatory laws and practices. It makes special note of the historically disadvantaged position of Namibian women.

In appraising Namibia’s efforts to combat discrimination, the Committee is asked to take note that white Namibians make up 6.4 per cent of Namibia’s total population but that they have disproportionate control over Namibia’s private sector and land. Further, Namibia has the second worst rate of income inequality in the world.

Therefore, pursuant to its constitutional mandate, Namibia has not only adopted a variety of laws designed to eliminate the vestiges of racism and discrimination against women and ethnic minorities that were inherited at independence, but it has oriented its overall national development agenda to empower and advance the economic and social position of the vast black majority of the population, including women, young people and ethnic minorities. This agenda cuts across all sectors.

It is therefore difficult to report on Namibia’s efforts to combat and eliminate discrimination within the legalistic framework of the Convention because these efforts span a wide range of government programmes. We therefore urge the Committee to take note that its observations and the answers to its specific questions regarding a few institutions or laws can only convey a partial picture of Namibia’s grand national project to eliminate discrimination.

I will now address the observations of the Committee in relation to the application of Articles 1, 2 and 5 of the Convention, to which my Government has already submitted a voluntary response to the ILO on 20 May 2021.

Article 1 of the Convention (Legislation – Additional grounds of discrimination). Namibia was requested to: amend section 33 of the Labour Act to provide for a remedy for the unlawful dismissal of an employee on grounds of HIV and AIDS status (actual or perceived), the degree of physical or mental disability, and family responsibilities; adopt measures to ensure that workers who are victims of discrimination on the basis of HIV status (actual or perceived) have effective access to legal remedies; and provide information on the number of cases of discrimination based on HIV status and on their outcome.

Section 5 of the Labour Act No. 11 of 2007 prohibits discrimination in an employment decision on grounds, including: an employee’s HIV and AIDS status (actual or perceived); the degree of physical or mental disability; and family responsibility. “Employment decision” includes the termination of employment.

With respect to access to effective legal remedies, section 7 of the Labour Act provides two alternative procedures to aggrieved employees to seek redress concerning employment decisions, including a decision to terminate an employee’s employment based on unlawful discrimination: (1) referring a dispute to the Labour Commissioner for arbitration, and (2) lodging a complaint with the Labour Court. It is our opinion that the current legal remedies are effective and accessible to victims of discrimination on the basis of HIV and AIDS status (actual or perceived). Nevertheless, the tripartite task force on the review of the Labour Act is considering the Committee of Experts’ request to include a specific reference to the above-mentioned grounds of discrimination in section 33(3).

I am pleased to inform the Committee that Namibia is considering its readiness to ratify the ILO Workers with Family Responsibilities Convention, 1981 (No. 156). I sent the matter to the Labour Advisory Council and, at its March 2021 meeting, the Council resolved to recommend ratification.

With respect to the request for information on the number of cases of discrimination based on HIV and AIDS status, I bring to the Committee’s attention that it is well known in Namibia that discrimination on the ground of HIV or AIDS status is unlawful. This was settled by the High Court in 2000 in the case of Nanditume v. the Minister of Defence. Thereafter a prohibition against discrimination on the ground of HIV or AIDS status was included in the Labour Act, 2004. Since Nanditume, there has not been a court case alleging discrimination against an employee on account of HIV or AIDS status.

I note further that Namibia had adopted a National Code on HIV/AIDS and Employment for HIV Prevention and AIDS Management in 1998, which addressed the prevention of new infections, as well as the provision of optimal care and support for the workforce.

One complaint concerning HIV/AIDs was lodged with the Ombudsman in 2019, involving the defence forces, but appears to have been abandoned by the complainant. The recent complaint may be an indication that employers and employees are aware of, and have access to, remedies for discrimination on the ground of HIV or AIDS status.

Articles 2 and 5 (Implementation of the equality national policy and affirmative action). The Committee of Experts has asked the Government to provide information on: the measures taken to implement the National Human Rights Action Plan 2015–19, in particular the review of the legislative and regulatory framework, and research undertaken, obstacles encountered and results achieved in this regard. It further asks the Government to report on its follow-up to the recommendations in the Office of the Ombudsman’s Special Report on Racism and Discrimination and the concrete steps taken.

Since independence, Namibia has been pursuing the agenda of eliminating discrimination in respect of employment and occupation and has established various institutions to deliver on this agenda.

With respect to the measures taken to implement the National Human Rights Action Plan of 2015–19, I can report as follows: the Law Reform and Development Commission initiated a project on obsolete laws, which resulted in the Repeal of Obsolete Laws Act, 2018 (Act No. 21 of 2018). Some of the repealed laws were discriminatory in nature. The second phase of the project included research on the existence of other obsolete and discriminatory laws. The research was completed, and the report was referred to the Minister of Justice for further action.

I can also report that the Ombudsman has prepared the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill. If enacted by Parliament, the Bill will repeal and replace the Racial Discrimination Prohibition Act 1991 (Act No. 26 of 1991). The Ombudsman conducted a consultative meeting with stakeholders on 28 May 2021 to gain their comments and input on the Bill.

The Ombudsman conducted research into why racism, racial and other forms of discrimination still persist 20 years after Namibia’s independence, and made numerous recommendations in his Report on the National Inquiry into Racism, Racial Discrimination and Other Forms of Discrimination and Tribalism, which was submitted to the National Assembly in October 2017. In addition, a white paper on indigenous peoples’ rights in Namibia has been finalized with input from stakeholders and is due for Cabinet approval.

The Committee of Experts request that the Namibian Government step up its efforts to promote access to training and employment opportunities for designated groups and review regularly its affirmative action measures.

The Government takes note of the Committee of Experts’ comment that it welcomed the measures introduced by the Employment Equity Commission (EEC) towards the workforce transformation and its efforts to deal with the underlying causes of discrimination.

The Affirmative Action (Employment) Act 29 of 1998, as amended, requires relevant employers to take positive measures to further the employment of persons from designated groups. At present, the threshold for “relevant employer” is set at enterprises employing more than 25 employees. Designated groups include persons from racially disadvantaged groups, women and persons with disabilities.

Affirmative action measures may include: giving preferential treatment in employment decisions to suitably qualified persons from designated groups to ensure that such persons are equitably represented in the workforce of a relevant employer; ensuring that existing training programmes contribute to furthering the objectives of the Affirmative Action (Employment) Act; and establishing new training programmes aimed at furthering the objectives of the Act. Within the aforementioned framework, the EEC addresses the issues of access to training and employment opportunities for designated groups.

The Committee of Experts request to provide information on the review of the Affirmative Action (Employment) Act and on the activities of the EEC.

The EEC, in consultation with the Ministry, sent to the tripartite Labour Advisory Council an initial set of proposed amendments to the Affirmative Action (Employment) Act. The EEC has established a task force to prepare a final draft amendment Bill. Among the amendments, the EEC proposes to reduce the current “relevant employer” threshold of 25 employees in order to extend affirmative action to more employers and employees.

With respect to its activities, the EEC has revised its 20-year old standard report guidelines in order to assess annual affirmative reports in accordance with more objective criteria and has introduced a new Integrated Review Scorecard. The EEC is also planning to play a key role in the implementation of the Violence and Harassment Convention, 2019 (No. 190), which Namibia ratified at the end of 2020. Although the EEC is striving for seamless operation, the collection and analysis of data on affirmative action remains a challenge. A modern information management system is needed. Finally, Namibia brings to the attention of the Committee that the Government is in need of ILO technical assistance to enable the EEC to develop and implement a comprehensive information management system.

In conclusion, the Government of Namibia underscores its appreciation of the ILO’s support and assistance, as well as the constructive dialogue with social partners in an effort to eradicate all vestiges of discrimination in employment. Namibia renews its assurances that it is committed to fulfilling the obligations it has undertaken under the Convention and various other Conventions of the ILO.

Employer members – Today we are discussing the application in law and practice of fundamental Convention No. 111 on discrimination in employment and occupation in Namibia.

This Convention has been ratified by 175 ILO Member States, which makes it one of the most ratified Conventions. Together with the Equal Remuneration Convention, 1951 (No. 100), Convention No. 111 details the broad and encompassing fundamental principle of the elimination of discrimination in respect of employment and occupation.

With the current social climate against structural racism and discrimination, many employers around the world have strengthened their policies to ensure that discrimination is eliminated from the workplace. Equality, diversity and inclusion policies help businesses improve productivity, creativity, improve cultural awareness, and increase outreach in the quest for talent and the company’s reputation. Therefore, all of us – governments, employers and workers – shall aim at achieving the elimination of discrimination in respect of employment and occupation.

With respect to this case, this is the first time that this Committee is discussing Namibia’s application in law and practice of the Convention, which was ratified by Namibia in 2001. The Committee of Experts prepared its observations on this Convention based on the Government’s 2019 submission, as well as the negotiations between the ILO and the Government of Namibia of the Decent Work Country Programme for Namibia 2019–23. Two written submissions were also provided by the Government of Namibia to the Conference Committee with detailed information related to the Committee of Experts’ observations. We thank the Government for providing such level of detail.

The issues at stake in this case: the Committee of Experts’ observations outline clear elements of inadequacy in Namibia’s law and practice with respect to the Convention. The Convention articulates around four elements: (1) the definition of and grounds for discrimination; (2) ways to implement policy; (3) the elaboration of a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination; and (4) the exceptions.

This case deals with all four elements. First, on the grounds for discrimination:

The Committee of Experts requested that the legislation on HIV status, physical or mental disability and family responsibilities, be compliant with Article 1(1)(b) of the Convention. This point raised by the Committee of Experts reminds us that the Convention is not only about the specific causes of discrimination in employment and occupation mentioned in Article 1(1)(a) which are race, colour, sex, religion, political opinion, national extraction or social origin, but that it also includes additional grounds like distinction, exclusion or preference, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organizations, where such exist, and with other appropriate bodies.

In Namibia, section 5 of the Labour Act defines HIV and AIDS status, physical or mental disability, and family responsibilities as possible grounds of discrimination. However, the Committee of Experts highlights that section 33 does not include them in the grounds of prohibited reasons for dismissal. Despite the lack of review of section 33 of the Labour Act, the Government explains that the same Act provides for dispute resolution mechanisms either before the Labour Commissioner for Arbitration or the Labour Court for all disputes concerning fundamental rights and protection, which includes disputes over employment decisions based on the grounds of HIV status.

In this regard, however, the Employers are encouraged by the Government’s statement here today that Namibia is, after all, considering amending section 33 of the Labour Act in line with the Committee of Experts’ recommendations.

Related to this first issue and also to the implementation of anti-discrimination policies in practice is the access to remedies. The Committee of Experts requested the Government to provide information on the cases of discrimination in relation to HIV and AIDS status dealt with by the labour inspectors and labour courts, and ensure that workers who are victims of discrimination on the basis of HIV status, actual or perceived, have effective access to legal remedies.

The Government’s reply did not provide any details on this point and the only complaint received by the Office of the Ombudsman seems to confirm the view of the Committee of Experts that few cases may be an indicator of the lack of awareness, lack of access to remedies, or fear of retaliation.

The Employers’ group underlines that access to remedy is essential to developing the effectiveness of anti-discrimination policies as required under Article 2 of the Convention. It is unclear to us whether such labour disputes can be brought before the Labour Commissioner for Arbitration and the Labour Court as indicated in the Labour Act No. 11 of 2007 or before the Office of the Ombudsman, as mentioned by the Government in its submission.

We request the Government to clarify whether specific measures to ensure that workers who are victims of discrimination on the basis of HIV status, actual or perceived, have effective access to legal remedies. We invite the Government to shed light on the body or bodies in charge of dealing with cases of discrimination.

The third issue concerns the national policy, which is the core of the Convention. On the implementation of the national policy, in line with Article 2 of the Convention, the Committee of Experts requested the Government to provide more information on the two documents developed at the national level namely, the National Human Rights Action Plan of 2015–19 and the Office of the Ombudsman’s Special Report on Racism and Discrimination. The former indicates legislative reforms and research on possible discrimination under the previous legislation, while the latter presents recommendations for the Government in terms of programmes and strategies and for employers’ organizations with respect to their action in the workplace.

The Government explained how a series of obsolete laws have been repealed by the Repeal of Obsolete Law Act No. 21 of 2018 because they were discriminatory in nature, and that further research was conducted on other laws, including on disabilities. The outcome of this research is currently being discussed under the specific Namibian Parliamentary context. Among the activities reported by the Government, we would like to underline the research and recommendations made by the Ombudsman on reasons why racism, racial and other forms of discrimination still persist after 27 years of Namibian independence. Since the report was submitted to the National Assembly in October 2017, we would like to ask the Government how that process has been followed up and whether there is a plan of action for implementing the Ombudsman’s recommendations. We would also like to know more about the establishment of the National Human Rights Action Plan for the next period starting in 2020.

The fourth and last issue concerns the specific groups protected under Articles 1(1)(b) and 5(2). The Committee of Experts referred to the three designated groups that the Government has considered as requiring additional protection under the Affirmative Action (Employment) Act 29 of 1998, and on which the EEC is tasked with the publication of a report measuring the impact of the specific protection.

The EEC report for 2016–17 indicated that there was significant room for improvement on the inclusion of all workers, not only white employees, into positions of management and for employment of persons with disabilities. To overcome these challenges, the EEC presented a number of proposals, including a legislative reform to the Affirmative Action (Employment) Act 29 of 1998, a review of guidelines for employers and a better case management system.

The Employer members understand from the Government’s submission that the legislative reform took place in 2007 with the Affirmative Action (Employment) Amendment Act 6 of 2007 and that the Labour Advisory Council provided some input and returned the Act for the incorporation.

The Employer members request the Government of Namibia to provide the final legislation once adopted. However, the Employer members also note that the 2007 amendments require employers to issue positive steps to further the employment of persons from the designated groups.

Worker members – We are examining the Government of Namibia’s application of Convention No. 111. According to Namibia’s National Human Rights Action Plan, several groups are identified as being exposed to the risk of occupational discrimination. These include women and indigenous people, while others face discrimination based on HIV status, age (both children and older persons), sexual orientation and disability.

We are concerned that race-based occupational segregation in the labour market prevails. For example, as documented by the report of the EEC for 2015–16 and for 2016‑17, employees of African descent constitute 93 per cent of the workforce, but they occupy only 26 per cent of managerial positions. Meanwhile, in 2018, 56 per cent of executive director positions were held by white employees, an improvement of only 3 per cent on the figures for 2010.

Furthermore, sex-based occupational segregation in the labour market persists and the representation of women in managerial positions in the private sector remains very low. This was also raised by the United Nations Country Team in Namibia in its submission at the Universal Periodic Review of Namibia that took place in May 2021.

Workers with disabilities are almost absent from the labour market, accounting for a mere 0.4 per cent of the workforce and being under-represented at every occupational level, as documented by the 2015–16 report of the EEC.

As the Convention acknowledges in its Preamble, the Declaration of Philadelphia affirms that “all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity”. In line with this, the scope of the Convention includes the elimination of any discrimination in respect of all aspects of employment and occupation, including in the form of sexual harassment, through the development of concrete measures that ensure that there is equality of opportunity in both law and practice.

The Labour Act of 2007 generally prohibits discrimination in employment and occupation, based on numerous grounds but, for some reason, it fails to include several groups, which are otherwise referenced and protected in different contexts, in the chapter protecting against unfair, discriminatory dismissal. Because of this, the law does not explicitly prohibit dismissal based on HIV status, physical or mental disability or family responsibilities. We recall that the Committee of Experts has been raising this issue since 2011, with no effect so far. This gap in protection must be closed as soon as possible.

Cases of discrimination in employment and occupation should be dealt with by labour inspectors and labour courts, the records of which are one valuable source of information on progress. However, the Government was not able to identify any new case law dealing with victims of occupational discrimination on the basis of actual or perceived HIV status. The last known court case dates back 20 years. Ensuring non-discrimination in employment and occupation of people with positive HIV status (either real or perceived) is of crucial importance for a fair and inclusive labour market. This is even more important in the case of Namibia, given that, although the country has made tremendous progress in the fight against HIV/AIDS, it still ranks fifth highest in the world in terms of its HIV burden, with an estimated 12.1 per cent of adults aged 15–49 living with HIV. While the Government, in its additional information regarding the observations of the Committee of Experts, presents the absence of cases as proof of success of changes to the law, the unfortunate truth is that a paucity of cases dealt with by the courts and labour inspectors often indicates significant barriers to remedy for victims, including a lack of awareness about rights and the fear of retaliation. The Government should acknowledge this and improve its actions, including data gathering, in this area.

With respect to the implementation of the national equality policy as prescribed by Article 2 of the Convention, the Government of Namibia adopted the National Human Rights Action Plan for 2015–19. The Plan contained commitments to promote equality, including with respect to groups such as women, indigenous people, people with disabilities and the LGBTI community.

The Plan also referred to research activities and a review of legislation, for example to include race as part of the affirmative action criteria in the Affirmative Action (Employment) Act 29 of 1998 and in updating the Racial Discrimination Prohibition Act (Act No. 26 of 1991). However, while the Government did initiate several legislative reviews, these initiatives are still at the preliminary stages of a legislative process. Accordingly, even though it was designed to be delivered by 2019, the National Human Rights Action Plan has not yet led to concrete results. Likewise, there appear to have been serious delays in implementing the recommendation of the Special Report on Racism and Discrimination, published by the Office of the Ombudsman in 2017. This report included a long list of substantial recommendations, for the Government as well as for the employers’ organizations, which, according to the Ombudsman himself, were supposed to be acted on by ministries within six months of the publication of the report, while the employers were supposed to undertake a review of recruitment procedures, training to detect discrimination, establishment of procedures to deal with discrimination claims, and other actions. However, when it comes to implementation, the Government indicates that the only action taken so far on these important recommendations was to disseminate them to members of the Namibia Employers’ Federation. While these various plans, analyses and research documents are potentially useful tools in support of efforts to eliminate discrimination in employment and occupation, they alone are not enough. To meet the aims of the Convention, concrete, proactive actions, appropriate to national conditions and practice, are required to address the underlying causes of discrimination and the cycle of inequality resulting from discrimination. Adoption of documents and their dissemination is not sufficient.

As already mentioned, occupational segregation in the labour market prevails and the representation of racially disadvantaged workers, women and workers with disabilities remains very low at higher occupational levels. The Government reported a number of planned affirmative action measures, such as a review of legislation and implementation of the provisions of the Affirmative Action (Employment) Act 29 of 1998, which require employers to institute positive steps to further the employment of people from disadvantaged groups; the adoption of the New Equitable Economic Empowerment Framework Bill 2015; and the promotion of access to training and employment opportunities for disadvantaged groups of workers.

The EEC also has planned a number of actions, including visits to workplaces, prosecution of employers not complying with the law, and maintaining a case management system. However, the Government has not shared any information about the results expected through these initiatives, such as targets on improved representativity of workforce demographics at workplaces in different sectors.

We recall that affirmative action on behalf of persons belonging to groups that have suffered disadvantage is an important component of a national equality policy. Concrete measures are needed to ensure equality of opportunity in practice, taking into account the diversity of situations of the people concerned, so as to halt discrimination, redress the effects of past discriminatory practices and restore a balance, as observed by the General Survey of 2012.

To conclude, while the Government of Namibia has developed many important initiatives with the view to eliminating discrimination, proactive, verifiable implementation of these initiatives, as well as greater enforcement through labour courts and inspections, are still needed. We call on the Government to take action to fully comply with the obligations under the Convention.

Government member, Zimbabwe – We would like to thank the representative of the Government of Namibia for providing this Committee with its positions on the issues raised by the Committee of Experts and on the subjects of the discussion in this Committee. My delegation appreciates the information provided by Namibia on how HIV and AIDS-related labour complaints are dealt with and the status of the complaints launched against the Namibian Defence Forces. Furthermore, my delegation appreciates the measures that Namibia has taken in implementing its National Human Rights Action Plan, as well as its affirmative action plan, in the context of the world of work and the work of the EEC.

My delegation has taken note of the information and progress on the development of the New Equitable Economic Empowerment Framework Bill 2015 that resonates with the principles enshrined in the Convention on discrimination in the labour markets. We also take note of the willingness of the Republic of Namibia to work with the ILO and urge the Office to provide the requested technical assistance.

Government member, Bolivarian Republic of Venezuela — The Government of the Bolivarian Republic of Venezuela expresses its appreciation for the presentation by the honourable Minister of Labour of Namibia, with respect to compliance with the Convention. We have noted that the Government of Namibia has paid careful attention to the comments of the Committee of Experts, reaffirmed its commitment to eradicate HIV/AIDS and emphasized its control of the transmission of this virus. We recognize that the Namibian Labour Act provides for effective mechanisms for victims of discrimination on grounds of HIV/AIDS status.

The 2021 report of the Committee of Experts states that the Government of Namibia has reported that the Labour Act is being revised with a view to broadening the prohibition against dismissal of a worker on grounds of HIV/AIDS status, and mental or physical disability, and that family responsibilities are protected.

We also recognize the progress made in relation to the National Human Rights Action Plan, in which the right not to be discriminated against is identified, particularly with regard to women, indigenous peoples, persons with disabilities and the LGBTI population.

In this regard, we also appreciate the tripartite Labour Advisory Council and the EEC in place in Namibia, which deal with equality in employment.

Lastly, the Government of the Bolivarian Republic of Venezuela hopes that the Committee’s conclusions will be objective and balanced in order that the Government of Namibia continues to make progress in complying with the Convention.

Worker member, Zimbabwe – I speak on behalf of the Zimbabwean workers, in solidarity with the workers of Namibia. We note some worrying issues contained in the Committee of Experts’ comments. These relate to persons disadvantaged on the grounds of race, in particular women and persons with disabilities. We note the Government’s efforts to address this issue through the establishment of the EEC. We note the measures taken by that Commission to redress some of the issues. However, we remain concerned that the EEC is not fully capacitated to undertake its work. Additionally, the EEC does not have a comprehensive information management system and reliable data, including on affirmative action. While we have acknowledged its work over the years, we noted that it has been mostly confined to issues of race between whites and blacks, while neglecting other forms of discrimination that are among the majority and minority ethnic groups. Certain black majority ethnic groups predominate employment in ethnic minorities areas, recruiting people of their own ethnicity and displacing indigenous people from employment and positions of power. The majority ethnic group is highly represented at the top in most occupations, including in the Government. Minority ethnic groups are deprived of opportunities as a strategy to keep them in lower positions.

We urge the Government of Namibia to address the above concerns before the 2022 International Labour Conference, and provide their progress report in this regard. We request the Committee to consider granting technical assistance to the Government to address these concerns.

Interpretation from Arabic: Government member, Egypt – We have taken note of the efforts of the Government of Namibia towards the application of the Convention. This confirms Namibia’s intention to work in accordance with the Convention. The Convention provides for a dispute resolution mechanism with regard to all issues relating to discrimination. The Government of Namibia also commits to take the necessary measures to fight HIV/AIDS, in order to ensure that legal provisions are effective and effectively applied.

Decisions have been taken to establish a National Human Rights Action Plan. The Government is also carrying out tripartite consultations with those involved in order to develop a white paper for indigenous peoples in Namibia. It adopted the Affirmative Action (Employment) Amendment Act 6 of 2007, which sets out the obligation for employers to take positive measures without discriminating against certain groups, broadening the possibility of fighting against discrimination. We welcome the efforts taken by Namibia to bring its laws into line with the provisions of the Convention and we very much hope that its efforts will be taken into account in the conclusions.

Worker member, France – Issues related to all forms of discrimination are unfortunately often reinforced when the economic context is challenging. People in vulnerable situations are thereby the first to be affected in terms of access to training and employment, among other things. These difficult economic contexts also foster multiple forms of discrimination. The case of Namibia is in this sense an example of this state of affairs.

While the Committee of Experts’ report refers to a number of regulatory frameworks aimed at combating different forms of discrimination in this State, it should be noted that the report does not provide statistical data and facts to enable an examination of the actual effectiveness in practice of these legislative aspects or regulatory frameworks. These data are also very difficult to find or date back to periods that are, in some cases, relatively distant. Similarly, the report fails to highlight the possible cultural and institutional factors that contribute to generating such discrimination. It would therefore be useful to have sufficient and reliable statistical data to enable the Committee of Experts to examine the ways in which Namibia intends to put an end to such discrimination in practice.

Equally, with regard to certain grounds of discrimination, particularly those related to HIV/AIDS, the Committee of Experts notes that the courts have not examined any complaints on this specific matter for 20 years. It is important to assess solutions to enable the judicial system to more effectively take account of cases of discrimination. Courts must be able to investigate, prosecute and punish enterprises that use discriminatory practices in employment and occupation. It is essential, in this regard, that victims can lodge complaints safely and are protected. There must also be provision for granting them legal and psychological support.

Further, employers have an important role in this regard, and freely chosen collective bargaining carried out in good faith is essential to negotiate policies and programmes aimed at eliminating and preventing all forms of discrimination in the workplace, and to implement remedies for workers who are victims of such discrimination.

Government member, India – India welcomes the delegation of the Government of Namibia and thanks it for providing the latest update on the issue under consideration. India appreciates the commitment of the Government of Namibia to fulfil its international labour obligations, including those related to the Convention, through progressive implementation of the relevant recommendations of the ILO and the willingness to constructively work with it.

We take positive note of various concrete steps taken by the Government of Namibia to implement the National Human Rights Action Plan 2015–19. Notable among these are: (i) the Law Reform and Development Commission’s project on obsolete laws which resulted in the repeal of the Obsolete Laws Act, 2018; and (ii) the ongoing deliberations among the stakeholders for repealing and replacement of the Racial Discrimination Prohibition Act, 1991. We also welcome the ongoing round of social dialogue that the Government of Namibia is organizing in order to enact the Equitable Economic Empowerment legislation.

We request the ILO and its constituents to fully support the Government of Namibia and provide all necessary technical assistance enabling the EEC to develop and implement a comprehensive information management system. We take this opportunity to wish the Government of Namibia all success in its endeavours.

Worker member, Botswana – The Botswana Federation of Trade Unions notes that discrimination against people living with HIV and with disabilities, though existing, can be defeated. The Namibian Government has been previously urged, as it is urged now by the Committee of Experts, to take measures that will ensure coherence between section 5 of its Labour Act, which defines discrimination, and section 33 on the prohibition of dismissal based on HIV and AIDS status, as well as the degree of physical or mental disability, and family responsibilities.

We also urge that the Government take cognizance of both the substance and essence of its National Human Rights Action Plan 2015–19, which identified critical areas of focus, among them the right not to be discriminated against. This particularly relates to certain groups including women, indigenous people, people with disabilities and LGBTI persons. We posit that, among other things, such measures require strong political will and deliberate effort to create an environment that is barrier-free for the equalization of opportunities for all.

There is also a need for the development of integrated occupational health services and a systematic endeavour at eliminating practices that promote stigma in the workplace. Ensuring increased access to technology related to assertive devices to create an environment to grant people with disabilities much-desired autonomy and guarantee dignity and respect, is equally imperative. One of the ways in which the above can be achieved is to grow awareness through public education and to benchmark against countries that have already made progress in destigmatizing HIV and disability.

Against this background, the Botswana Federation of Trade Unions submits that, in light of initiatives already taken by the Government as epitomized by the National Human Rights Action Plan 2015–19 and the report of the Ombudsman of November 2017, there seems to be ample potential and opportunity for remedying the concerns raised by workers, subject only to collectivism, cooperation and sound political will.

Government member, Malawi – Malawi has taken note of the observations made by the Committee of Experts contained in its 2020 Supplementary Report in respect of Namibia’s application of the Convention. At the same time, the Government of Malawi appreciates the information provided by the Government of Namibia on the implementation of the Convention.

Malawi has taken note that Namibia is appearing before this Committee for the first time. We have also taken note that the current legal remedies are effective to curb discrimination, including on the basis of a real or perceived HIV-positive status. Malawi applauds Namibia for the concrete and constructive steps taken by the Government to implement the National Human Rights Action Plan 2015–19, including the legislative reforms to ensure that the country’s laws are in conformity with the provisions of the Convention, and the repeal of laws that were perceived as discriminatory in nature.

The Government of Malawi commends Namibia for the continued engagement with the social partners and private sector on the legislative reforms, including the upcoming New Equitable Economic Empowerment Framework Bill 2015. The Government of Malawi implores the ILO to provide technical assistance as requested by the Government of Namibia.

Worker member, Democratic Republic of the Congo– This intervention aims to provide supplementary information to the well-presented report on Namibia of the Committee of Experts. In Namibia, as is the case in Africa, women’s access to, and insertion and participation in the formal labour market, while increasing, is poor. Actions that discriminate against women’s participation make genuine positive actions slow to show results. Breastfeeding, for example, when not managed properly, can contribute to reducing women’s chances of employment and advancement.

Just as the Namibian Government is promoting the benefits of breastfeeding, there are no corresponding measures for legal protection and assistance for nursing mothers. In fact, many nursing mothers would prefer to cut short as much as possible the period during which they breastfeed in order to return to work, as they face benefit cuts when they go on maternity leave.

In addition, the Social Security Commission has a very low ceiling for compensation for women who take a three-month maternity leave. This is barely enough for working mothers. It forces most mothers to renounce maternity leave altogether or, in some circumstances, to interrupt it for fear of loss of income.

These discriminatory realities infringe women’s reproductive rights and violate their fundamental rights to remunerative and productive employment. To avoid these situations, many women, especially young women, have chosen to put off their maternity and some do not wish to have children at all. These are forced and avoidable choices. The Government must put an end to this nightmare for women of reproductive age.

Government member, Ghana – Ghana prioritizes human rights issues and, as such, recognizes any form of discrimination as a serious violation of human rights, as enunciated by the Universal Declaration of Human Rights. The Government of Ghana therefore commends Namibia for bringing its regulations in line with the provisions of the Convention. Section 5(2) of Namibia’s Labour Act of 2007 explicitly prohibits all forms of discrimination in relation to employment decisions either directly or indirectly and lists all the important grounds of discrimination, which include HIV/AIDS. The Act also provides alternatives to aggrieved employees to seek redress on unlawful employment decisions. It is also important to acknowledge the commitment of Namibia in the fight against HIV, making Namibia the first in Africa to have more than three-quarters of its HIV-affected population virally suppressed.

Ghana further notes the concrete measures taken by the Government of Namibia, including the development and implementation of the National Human Rights Action Plan 2015–19, to eliminate all forms of discrimination in employment and occupation. Through the implementation of the Action Plan, the Government of Namibia has repealed some of the laws that were discriminatory in nature.

The Government of Ghana supports Namibia’s request to the ILO for technical assistance to enhance the operations of the EEC to develop and implement a comprehensive information management system for case management, accurate data collection and analyses, as well as evidence-based planning and policymaking with respect to affirmative action and discrimination in employment.

Government member, Botswana – We thank the representative of the Government of Namibia for the detailed response to the issues raised by the Committee of Experts. It is clear that the Government, in collaboration with the social partners, has made significant progress on the issues raised by the Committee of Experts. We note with satisfaction that discrimination on the grounds of HIV or AIDS status has been declared unlawful in Namibia, as provided for in the Labour Act of 2007. It is also clear that the prohibition of dismissal of employees due to HIV and AIDS status, actual or perceived, the degree of physical or mental disability, and family responsibility is already provided for in section 5 of the Labour Act.

Furthermore, we note the commitment of the Government to formulate the Equitable Economic Empowerment legislation, the process of which is in the consultation stages between the Government and stakeholders. Accordingly, this Committee should urge the Government of Namibia to expedite this process.

We appreciate that Namibia has acknowledged its limitations to collecting crucial data relating to discrimination. We therefore commend the Government of Namibia for having taken the critical step to request ILO technical assistance to enable the EEC to develop and implement a comprehensive information management system, which we hope and trust will be provided by the ILO.

Government member, Burkina Faso – The Government of Burkina Faso is very pleased to take the floor on the occasion of the examination of this individual case, which involves the sister republic of Namibia, on the application in law and practice of Convention No. 111. The elimination of discrimination in respect of employment and occupation, which is the subject of this Convention, is one of the components of the fundamental principles and rights at work enshrined by the ILO. My country strongly encourages the promotion of the fundamental principles and rights at work as pillars for the achievement of decent work and of the objective of social justice, which is dear to our common Organization, and will spare no effort to support Member States in this regard.

The Government of Namibia is called before the Committee, further to the observations made by the Committee of Experts, for non-conformity of certain of its domestic legislative provisions with certain key principles contained in the Convention, which was ratified on 13 November 2001. Following up on these observations, the Namibian Government provided a reply containing some very relevant information. Indeed, the reply illustrates the following significant actions: the protection of workers against all prohibited forms of discrimination through the existing administrative and judicial mechanisms; the implementation of the National Human Rights Action Plan 2015–19; the initiation of a drafting process for a white paper on the rights of indigenous peoples, based on the report produced by the Ombudsman and submitted to the National Assembly; the progressive implementation of the recommendations resulting from the work of the EEC; and the implementation of the drafting process for the New Equitable Economic Empowerment Framework Bill 2015.

All of these actions, which are under way, in a global context of the COVID-19 pandemic, demonstrate the consented actions of Namibia to give full effect to the Convention. For this reason, Burkina Faso calls on the Committee to give Namibia time to follow up these actions, with ILO support if necessary.

Government member, Ethiopia – My delegation would like to commend the Honourable Minister of Labour of Namibia for the comprehensive report on the application of the Convention. We took note of the information provided by the Government of Namibia that the country’s existing legal framework prohibits discrimination on all grounds. We further noted from the Government’s report the implementation of the National Human Rights Action Plan 2015–19, as requested by the Committee of Experts. We are also informed that the review of the Affirmative Action (Employment) Act 29 of 1998 has already been finalized and a task force has been established to prepare the draft Amendment Bill.

As indicated in the Government’s report, a proposal for Equitable Economic Empowerment legislation has been under discussion between the Government and stakeholders. The Government is currently conducting another round of social dialogue with the private sector on a redrafted Bill and a final Bill will be submitted to the Cabinet for consideration before it is tabled before the Assembly.

Finally, the Government of Namibia openly indicated its limited capacity to collect data relating to discrimination, and requested ILO technical assistance to enable the EEC to develop and implement a comprehensive information management system to address electronic affirmative action report submission and case management.

Since the Government of Namibia is demonstrating concrete efforts at its fullest capacity to progressively ensure the conformity of the Convention with its national laws and practice, we encourage the ILO to provide technical assistance to complement the Government’s efforts to ensure effective application of the Convention. In conclusion, we hope that the Committee in its conclusions will take into consideration all the concrete information provided by the Government of Namibia, as well as the constructive comments and discussions held in this august house.

Interpretation from Arabic: Government member, Algeria – At the outset, Algeria welcomes the progress made by the Republic of Namibia, in particular in the implementation of the provisions of the Convention. In this regard, the Algerian delegation applauds the measures envisaged by the Government of Namibia to ensure alignment with international law and best practices relating to the promotion of equal rights and opportunities at work.

In its pursuit of greater public policy coherence, the Algerian delegation encourages Namibia to continue its efforts to ensure a comprehensive and integrated approach to non-discrimination, and to the consideration of particular needs, such as persons with disabilities and those living with HIV/AIDS.

Algeria also applauds the Government of Namibia for its commendable and constructive efforts to advance the process of amending labour legislation to prohibit the dismissal of workers on the grounds of HIV/AIDS status, degree of physical or mental disability, or family responsibilities; and for the adoption of the New Equitable Economic Empowerment Framework Bill 2015, as well as for the development of programmes for access to training and employment opportunities for persons with disabilities.

Algeria also believes that the Republic of Namibia could, in cooperation with the ILO, further its consideration to improve the institutional framework and thereby fulfil previous lack of action with regard to combating discrimination against vulnerable groups and behaviour leading to an indecent work environment.

Worker member, Democratic Republic of the Congo – With regard to HIV/AIDS, as noted by the Committee of Experts in its report, Namibia has become the first country in Africa of which over three quarters of its population is affected by HIV, which is a very worrying situation of a brother country. But it is regrettable that Article 1(1)(b) of the Convention is not sufficiently exploited in this case, particularly in terms of HIV status. Echoing the comments of the Committee of Experts, we call on the Government to adopt specific and ambitious measures to guarantee that workers who are victims of discrimination on the basis of HIV status (actual or perceived) have effective access to legal remedies.

With regard to access to vocational training, in line with Article 1(3) of the Convention, the employers of the Democratic Republic of the Congo appreciate the efforts made by the Government to promote access to training and employment opportunities for designated groups. We also call on the Government to review regularly the affirmative action measures to assess their relevance and impact and to provide information on any measures taken is this regard and the results achieved.

However, given the different forms of discrimination in employment and occupation, as experienced and reported in Namibia, we call on the Government to adopt a concerted approach with the involvement of the social partners and request ILO assistance with a view to the positive development of the world of work in respect of the Convention.

Government member, Angola – Angola would like to congratulate the Namibian delegation for submitting its report, as well as for its willingness to request ILO technical assistance to develop and implement a comprehensive information management system. It seems that this system will allow the collection and analysis of data, and compile evidence for cases regarding affirmative action and discrimination. In this regard, it should be noted that this is the first time that the Government of Namibia has been asked to present itself to this Committee.

We understand that discrimination on the basis of status is illegal and punishable by law in Namibia. Thus the Government of Namibia has been working with all stakeholders on improving the values of social justice, making the law accessible through constructive engagement with national and regional institutions, including the Southern Africa Development Community. In this regard, it is noteworthy that the prohibition of unfair discrimination, hate speech and harassment was circulated in Namibia for comments from the various stakeholders and a consultative meeting was held on 28 May 2021. Ultimately, the Racial Discrimination Prohibition Act was repealed.

Taking into account the commitments made, the Angolan delegation congratulates Namibia on results achieved so far and encourages the Government to continue with the process of legislative reforms in order to improve labour legislation, conforming it with international instruments of the ILO. The country will therefore need technical assistance.

Observer, International Trade Union Confederation (ITUC) – The Government of Namibia has responded that discrimination on the grounds of HIV or AIDS status is unlawful, as decided in the case of Nanditume v. the Minister of Defence by the High Court in 2000. However, discrimination on one’s HIV status continues to haunt employees in the Namibian labour market in several opaque and hidden ways.

Recruitment into the disciplined forces still comes with a pre-employment health test. The tests are justified presumably to determine the health status of the prospective employees to purportedly render them the necessary assistance once they are employed. Is it not possible and better to render them such health assistance after they have been recruited?

The next difficulty that arises from the pre-employment test is the discrimination that follows in its wake with regard to the medical insurance benefits which are literally curtailed together with any further prospects of full employment in the government sectors.

In terms of the pension fund that influences the employment of staff in government service, once an employee had been found unfit by the board for medical or health-related reasons, they cannot be re-employed in government services on a full-time basis with the retention of their pension and other benefits. Suppose an employee is found unfit at age 28 and re-employed on a part-time basis, less the medical and other benefits at the age of 30. It follows that such an employee will work for 30 years without any medical aid and any other benefit that goes with full employment status in the public services.

It is our submission that employees who have fully recovered from HIV/AIDS complications, or any other ailments for that matter, must not suffer any form of discrimination relating to their employment. What has been said concerning HIV status above is also true in relation to mental and physical disability as well.

This Conference needs to take note of the question of compatibility, because it is the very same reason being used to discriminate against persons with disabilities or mental health problems. It is our submission that there must be a compatibility requirement for people who have been declared by medical doctors as fully recovered to resume employment suited to their current state of health.

Government member, Sudan – On behalf on the Government of Sudan, I would like to present a statement in support of the Government of Namibia with regard to the application of the Convention. We wish to make this statement following the information provided by the Namibian Government. Namibia ratified the Convention in 2001 and this is the first time that it is called to appear before your Committee for the application of this Convention.

The Convention has been incorporated into the labour law and the country has amended the sections indicated by the Committee of Experts in order to bring them into conformity with the international labour standards. The Government of Namibia has taken effective measures to provide any victims with effective legal remedies. It has also taken effective measures with regard to equality in employment within the framework of its National Human Rights Action Plan 2015–19. We wish to support the Government of Namibia with the measures it has adopted in this regard.

Government member, Eswatini – Eswatini has the honour to join the discussion of the case of Namibia on Convention No. 111. My delegation would like to recall that Member States who ratify this Convention undertake to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

We would also like to draw the attention of the Committee to the provisions of Article 3 of the Convention, which provides that the promotion of acceptance and observance of the national policy eliminating any discrimination shall be pursued, by methods appropriate to national conditions and practice, with the cooperation of employers’ and workers’ organizations and other appropriate bodies. What we wish to underscore here is that this is a shared responsibility.

From the information that has been provided by the Government of Namibia, my delegation has taken note that both through legislative and national policy instruments and action plans, Namibia has endeavoured to implement the Convention in both law and practice. Reference in this regard is made to the following policy and legislative instruments, and action plans that have been adopted by the Government over the years: (i) the National Code on HIV/AIDS and Employment for HIV Prevention and AIDS Management, 1998; (ii) the National Human Rights Action Plan, which identified as one of its main areas of focus “the right not to be discriminated against”, in particular with respect to certain groups including women, indigenous people, persons with disabilities and other persons; (iii) the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill, which will repeal the Racial Discrimination Prohibition Act No. 26 of 1991; (iv) the publication in November 2017 of the Office of the Ombudsman’s Special Report on Racism and Discrimination, which included recommendations for the Government (namely formulation of programmes and strategies, awareness-raising, support to victims) and for the employers’ organizations (namely the review of recruitment procedures, training to detect discrimination, establishment of procedures to deal with discrimination claims); (v) the development of a White Paper on Indigenous People’s Rights which has since been submitted to Cabinet; (vi) the adoption of the Affirmative Action (Employment) Amendment Act 6 of 2007, which requires employers to take positive steps to further the employment of persons from designated groups; and (vii) the establishment of the EEC, which delivered its report in 2017.

The cumulative effect of all the forgoing activities should surely accrue in favour of the Government of Namibia as efforts that demonstrate the limitless intentions of the Government to implement this Convention in both law and practice.

Government member, Uganda – My delegation notes that this is the first time Namibia is appearing before this Committee and has commenced data collection for the detailed response provided. Allow me to address the issues brought to the attention of Namibia under the Convention. We welcome the efforts undertaken by Namibia and further call on the Office to extend technical support to address the challenges of data collection and analysis in the context of affirmative action. We consider that further support from the Office to the tripartite partners facilitates the development of appropriate training programmes to promote the objective of affirmative action. Once again, my delegation takes note of consistent progress, in particular the social dialogue for inclusivity and for formulation of the Bill to be submitted to Cabinet. Finally, my delegation is persuaded that Namibia has taken the right steps and calls on the Office to provide technical support to build capacity in respect of data collection and other relevant areas.

Government representative – On behalf of my delegation, I thank you for your excellent leadership in steering the discussions today. I also wish to thank all the delegations that took the time to participate during Namibia’s presentation to the Conference Committee. Your valuable input, comments and recommendations are instrumental to our continued efforts to ensure full implementation of human rights in the world of work for the benefit of our people. The high participation levels demonstrated through interventions and advice offered here today is highly encouraging and serves as motivation for Namibia’s commitment to non-discrimination and equality in the world of work.

As stated in my statement, Namibia remains committed to the grand national project to eliminate discrimination. The protection provided by the labour law is broader in nature and scope in that it relates to prohibition discrimination in any employment decision in all areas of employment from entry to exit. The inadequacy in the protection of dismissal based on HIV/AIDS status, as it is perceived by the Committee of Experts, is under consideration by the tripartite task force. Namibia is proud of the achievements relating to the elimination of discrimination in employment since independence.

In conclusion, let me reiterate once again, that Namibia will continue to consult social partners on the application of Convention No. 111, as well as implementation of other ILO Conventions.

Worker members – We note the comments of the Government of Namibia. We emphasize that the Government has an obligation to respect international labour standards and the guidance provided by the Committee of Experts in line with their mandate. It also has a responsibility to respond thoroughly to the questions raised by the Committee of Experts. Looking back through the documentation for this case, we see repeated calls from the Committee of Experts for the same information. We remind the Government to treat the Committee of Experts’ questions with the utmost seriousness.

The principal objective of the Convention is to eliminate all discrimination in respect of all aspects of employment and occupation – as defined in the Convention – through the concrete and progressive development of equality of opportunity and treatment in law and practice. In doing so, it also makes our societies more fair and more equal. But it is a dynamic Convention, asking Members to keep in mind the goal of eliminating any discrimination in employment and occupation. In pursuit of this, States are required to develop and implement a multifaceted national equality policy and they should keep this under review: policies and practices which have previously had some success, but which have stalled, need regular revision if progress is to be maintained towards that aim of eliminating any discrimination. Of course, the adoption of a national equality policy presupposes the adoption of specific and concrete implementation measures, including the need for a clear and comprehensive legislative framework, to ensure that the right to equality and non-discrimination is effective in practice.

We note the Government of Namibia’s own concerns, relayed to journalists in 2019, that innovative ways are required to speed up progress towards employment equity. We trust that this concern will translate into the political will necessary to take the actions needed to match policy and practice with ambition.

With a view to achieving the elimination of any discrimination, including in the form of sexual harassment – and this is the challenge Convention No. 111 demands of us – we call on the Government to take proactive measures to address the underlying causes of discrimination, and de facto inequalities resulting from discrimination, in employment and occupation, to keep their effectiveness under review, and in doing so to be responsive to the guidance of the ILO and its Committee of Experts.

We call on the Government of Namibia to extend the prohibition of dismissal to HIV and AIDS status (actual or perceived), physical or mental disability and family responsibilities, and to make this explicit in law. Victims of workplace discrimination should have effective access to judicial remedy. We note the Government’s assurance in its supplementary written submission, and its statement here, that these groups are protected, but would also note that if the ILO’s foremost Committee of Experts is uncertain of whether a group is fully covered, it is likely that a member of that group facing potential discrimination will also be unsure. This represents a barrier to justice and remedy and should be addressed speedily.

We also call on the Government of Namibia to step up efforts to fully implement its national equality policy. The Government should provide detailed information on the concrete measures taken to implement the actions set out in the National Human Rights Action Plan 2015–19, in particular the review of the legislative and regulatory framework, and report on the results achieved. Further follow-up should be given to the recommendations in the Office of the Ombudsman’s Special Report on Racism and Discrimination, now several years old, and the practical steps taken to address such discrimination.

Lastly, we recall the importance of affirmative action, provided for in the Convention, on behalf of workers belonging to groups that have suffered disadvantage, in achieving an effective national equality policy. We call on the Government of Namibia to take action to ensure that disadvantaged groups of workers can enjoy their right to non-discrimination in employment and occupation, including through affirmative action. The Government of Namibia should promote access of disadvantaged workers to employment and to particular occupations, to vocational training and to non-discriminatory terms and conditions of employment. Accordingly, we call on the Government to respond to requests of the Committee of Experts and to provide information about the results of current affirmative action initiatives, as well as details of the planned legislative reviews.

The Government must accept an ILO technical mission to provide the necessary assistance to not only develop information management systems, but to support full compliance with all the obligations under the Convention.

Employer members – The Employers’ group would like to thank the Government of Namibia for the comprehensive and useful information, especially on the implementation, in law and practice, of the Convention, and all the legislative changes that have been adopted or are under way.

We would like to also thank the delegates that took the floor and participated in today’s discussion. In light of the debate, the Employers’ group invites the Government to:

• adopt specific measures to ensure that workers who are victims of discrimination on the basis of HIV status, actual or perceived, have effective access to legal remedies, and also to shed light on the body or bodies in charge of dealing with cases of discrimination in Namibia;
• report on the follow-up and action plan to the Office of the Ombudsman’s Special Report on Racism and Discrimination submitted to the National Assembly in October 2017;
• report on the follow-up to the National Human Rights Action Plan 2015–19, if any;
• report on the final legislative changes to the Affirmative Action (Employment) Amendment Act 6 of 2007, following the tripartite Labour Advisory Council input and given the work of the national task force;
• clarify how, in the context of Namibia’s redress programme, decisions of the EEC affect employers’ ability to fill certain job positions;
• report on the reform of the New Equitable Economic Empowerment Framework Bill 2015, which is almost ready for Cabinet consideration, before it is tabled in the National Assembly in the third or fourth quarter of the 2021 to 2022 financial year; and lastly
• avail itself of any ILO technical assistance required.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed.

Taking into account the discussion, the Committee urges the Government to take all necessary measures, in consultation with the social partners, to:

• adopt specific measures to ensure that workers who are victims of discrimination on the basis of any of the prohibited grounds have effective access to legal remedies;
• provide information on the number of cases of discrimination dealt with by labour courts and on their outcome;
• report on the follow-up and action plan to implement the recommendations of the Office of the Ombudsman’s Special Report on Racism and Discrimination submitted to the National Assembly in October 2017, including with regards to the review of recruitment procedures, training to detect discrimination, and the establishment of procedures to deal with discrimination claims;
• provide detailed information on the concrete measures taken to implement the National Human Rights Action Plan for the period following 2015–19, if any, and in particular the review of the legislative and regulatory framework, and report on the results achieved;
• report on the actions taken to promote access to employment and occupational training for groups disadvantaged because of race, gender or disability, pursuant to the Affirmative Action (Employment) Act, 1998;
• report on the planned legislative review, including the final legislative changes to the Affirmative Action (Employment) Amendment Act 6 of 2007;
• reinforce the mandate of the Employment Equity Commission (EEC) to deal with cases of discrimination, strengthen its capacity and clarify how its decisions affect the employers’ filling of certain job positions; and
• report on the reform to the New Equitable Economic Empowerment Framework Bill 2015.

The Committee requests that the Government accept an ILO technical advisory mission to provide the necessary assistance to support full compliance with the obligations under the Convention.

The Committee requests the Government to submit a report, following consultation with the social partners, to the Committee of Experts before its next meeting in 2021.

Government representative – Namibia takes this opportunity to thank you for your able leadership on steering the Committee during the 109th Session of the International Labour Conference. Since this is the first time that Namibia has appeared before the Committee, our team has learnt much from the proceedings.

Namibia is committed to implementing the provisions of the Convention and taking all necessary measures to that end in consultation with the social partners, as highlighted by the Committee’s conclusions. We will consult with our social partners and other relevant stakeholders on various items, specifically the Committee’s conclusions.

To conclude, Namibia welcomes the technical advisory mission to provide the necessary assistance to ensure full compliance with the obligations under the Convention. We propose that the mission be organized virtually so that it can proceed without delay. We commit to submitting the requested report to the Committee of Experts before its next meeting.

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

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.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received by the Office on 1 September 2021. The Committee requests the Government to provide its comments in this respect.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the detailed discussion which took place at the 109th Session of the Conference Committee on the Application of Standards (CAS) in June 2021 concerning the application of the Convention by Namibia. The Committee notes with interest that, following the CAS conclusions, an ILO Technical Advisory Mission was undertaken – virtually, due to the prevailing pandemic situation – from 14 September to 27 October 2021 to review the progress made and discuss a possible roadmap of future measures to be taken in consultation with the social partners. The Committee hopes that the road map will allow all the issues raised to be dealt with in a tripartite manner, setting deadlines for discussion. The Committee asks the Government to provide information on the outcome of this mission and its follow-up.

Article 1(1)(b) of the Convention. Prohibited grounds of discrimination: HIV status, disability and family responsibilities. Legislation. In its previous comments, the Committee requested the Government to take steps to ensure coherence between the general non-discrimination provision of the Labour Act (section 5) and section 33 of the Act which prohibits unfair dismissal, so as to prohibit dismissals on the grounds of HIV status, the degree of physical or mental disability, and family responsibilities. The Committee notes that, in its observation, ITUC recalls that, despite the Committee raising this issue for a number of years, the Labour Act still does not explicitly prohibit dismissal based on HIV status, physical or mental disability, or family responsibilities. The Committee notes that the Government indicates in its report that it will consult the tripartite Labour Advisory Council on a proposed amendment to add these three prohibited grounds of discrimination to section 33 of the Labour Act so as to ensure consistency with section 5, and will pursue the necessary steps to table the amendment before the National Assembly. In view of the above, the Committee asks the Government to provide information on the progress made in the adoption of the amendment to section 33 of the Labour Act so as to prohibit dismissals on the grounds of HIV status (actual or perceived), the degree of physical or mental disability, and family responsibilities.

Articles 2 and 5. Implementation of the national equality policy. The Committee recalls that the CAS, in its conclusions, requested the Government to: (1) provide detailed information on the concrete measures taken to implement the National Human Rights Action Plan (NHRAP) for the period 2015–19 and following and in particular the review of the legislative and regulatory framework, and report on the results achieved; and (2) report on the implementation of the recommendations of the Office of the Ombudsman's Special Report on Racism and Discrimination submitted to the National Assembly in October 2017, including with regard to the review of recruitment procedures, training to detect discrimination, and the establishment of procedures to deal with discrimination claims. The Committee recalls that the following actions were envisaged in the NHRAP: (1) a comprehensive review of the regulatory framework to assess its compliance with the principle of non-discrimination; (2) the development of a White Paper on Indigenous Peoples’ Rights; (3) research into comparable legal instruments protecting the rights of persons with disabilities and the development of benchmarks (i.e. building design standards); (4) research and review of laws and policies to identify and rectify provisions that discriminate against “vulnerable groups” (i.e. women, children, elderly persons, sexual minorities, persons with disabilities and indigenous peoples); (5) the review of the Affirmative Action (Employment) Act (Act No. 29 of 1998) with a view to establishing the continued relevance of race as part of affirmative action criteria; and (6) the review of the current Racial Discrimination Prohibition Act (Act No. 26 of 1991) with a view to enacting new legislation against discrimination. The Committee notes the ITUC’s observations in this regard in which it: (1) notes that despite being designed to be delivered by 2019, the NHRAP has not led so far to concrete results; and (2) recalls that persons with disabilities are almost absent from the Namibian labour market. Regretting that the only action taken by the Government regarding the recommendations contained in the Special Report on Racism and Discrimination was to disseminate them to employers, the ITUC also calls for concrete and proactive action appropriate to national conditions and practice. The Committee notes the Government’s indication that the two key interventions in order to implement the NHRAP recommendations are: (1) research on current discriminatory practices in recruitment in the public service; and (2) a review of the Affirmative Action (Employment) Act. Furthermore, the Government indicates that the Ministry of Labour, Industrial Relations and Employment Creation (MLIREC) and the Office of the Ombudsman agreed to: (1) conduct thorough research in the public sector in order to establish the existence of discrimination in employment pertaining to racism, ethnicity and inequality; (2) design a research proposal on discrimination that would include the component of race and ethnicity; and (3) mobilize funds for these research projects. The Committee also notes that, in the information that it submitted to the CAS on 20 May 2021, the Government indicated that the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill, which repeals the Racial Discrimination Prohibition Act of 1991, has been circulated for comments and that a stakeholders’ consultative meeting was scheduled for 28 May 2021. Regarding specifically the recommendations contained in the Ombudsman's Special Report on Racism and Discrimination, the Government indicates that the measures it has identified to address these recommendations are as follows: (1) review the recruitment process in the public service; (2) introduce a code of good practice on the elimination of discrimination in employment; (3) disseminate information on the elimination of discrimination in employment; (4) train arbitrators to adjudicate cases of discrimination and labour inspectors to detect “victimization” in employment and occupation; and (5) train affirmative action reports review officers and ombudsman officials on the concepts of discrimination. The Committee notes the list of measures identified by the Government as necessary to implement the NHRAP and the recommendations contained in the Ombudsman’s Special Report on Racism and Discrimination. The Committee therefore asks the Government to provide detailed information on the progress achieved regarding: (i) the review of the recruitment process in the public service; (ii) the development and adoption of a code of good practice on the elimination of discrimination in employment in consultation with employers’ and workers’ organizations; (iii) the dissemination of information on the elimination of discrimination in employment; (iv) capacity building for judges, arbitrators, labour inspectors, affirmative action reports review officers and Ombudsman officials; and (v) the adoption of the Prohibition of Unfair Discrimination, Hate Speech and Harassment Bill.

Designated groups. Persons disadvantaged on the ground of race, women and persons with disabilities. Affirmative action. The Committee notes that, in its conclusions, the CAS requested the Government to: (1) report on the actions taken to promote access to employment and occupational training for groups disadvantaged because of race, gender or disability, pursuant to the Affirmative Action (Employment) Act, 1998; (2) report on the planned legislative review, including the final legislative changes to the Affirmative Action (Employment) Amendment Act 6 of 2007; (3) reinforce the mandate of the Employment Equity Commission (EEC) to deal with cases of discrimination, strengthen its capacity and clarify how its decisions affect the employers’ filling of certain job positions; and (4) report on the reform to the New Equitable Economic Empowerment Framework Bill 2015. In its observations, the ITUC noted that the Government reported a number of planned affirmative action measures but did not indicate the results expected through these initiatives, such as, for example, setting specific targets on improving the representativity of different groups in workplaces. ITUC considers that the Government must step up its efforts to implement effectively its national equality policy. The Committee notes the Government’s statement that section 17(3)(a) and (b) of the Affirmative Action (Employment) Act – which empowers the EEC to determine whether a designated group is equitably represented in the various positions of employment offered by a “relevant employer” – is the legislative framework on which the EEC relies regarding the issue of access to training and employment opportunities for designated groups. Regarding the amendments to this Act, the Government, in the information it submitted to the CAS in May 2021, indicated that the final draft amendment Act, including the inputs provided by the Labour Advisory Council, was submitted to the Employment Equity Commissioner on 11 May 2021 and that the EEC was now conducting a desk review with a view to align it with international law and best practices on several issues. As regards the definition of “relevant employer”, the EEC is of the view that it is time to reduce the threshold (which stands since 2007 at 25 or more employees) in order to cover more employers (and employees). The Committee takes note of the Government’s undertaking to share the final legislative changes with the ILO before they are adopted into law. The Committee also notes the pamphlet annexed to the Government’s report issued by the Division of Marginalized Communities of the Ministry of Gender Equality, Poverty Eradication and Social Welfare and refers, in that regard, to the direct request it addresses to the Government on this issue under the Convention. The Committee asks the Government to continue to provide information on: (i) the actions taken to promote access to employment and occupational training for designated groups and the measures put in place in order to review regularly the affirmative action measures to assess their relevance and impact; (ii) the progress made towards the revision of the Affirmative Action (Employment) Act 1998, amended in 2007; and (iii) any measure taken to reinforce the mandate of the EEC to deal with cases of discrimination.

The Committee refers to the CAS request to the Government to report on the adoption of the New Equitable Economic Empowerment Framework Bill 2015, which aims to promote the achievement of the constitutional right to equality and to bring about socio-economic transformation in order to enhance equity, social justice and empowerment of the previously disadvantaged majority, and to promote a higher economic growth rate, increased employment and more equitable income distribution. In this respect, the Committee notes that the Government, in the information it submitted to the CAS in May 2021, indicated that the draft bill was “almost ready for Cabinet consideration before it is tabled in the National Assembly in the third or fourth quarter of the 2021–22 financial year”. However, it notes that, in its report, the Government declares that it is premature to report on the Bill as there is no consensus with stakeholders. The Committee takes note of this information.

Enforcement. The Committee notes that, in its conclusions, the CAS asked the Government: (1) to adopt specific measures to ensure that workers who are victims of discrimination on the basis of any of the prohibited grounds have effective access to legal remedies; and (2) to provide information on the number of cases of discrimination dealt with by labour courts and on their outcome. In this regard, the Committee takes note of ITUC’s concerns vis à vis the shortcomings of the labour inspections and labour courts and of its view that the absence of cases of discrimination based on HIV status (actual or perceived) is an indication of significant barriers to a remedy for victims, lack of awareness of rights and fear of retaliation. The Committee notes the Government’s statement that the following measures are envisaged to make remedies more accessible: (1) carrying a desktop research on how other countries ensure effective access to legal remedies; (2) enacting regulations requiring employers to display information at the workplace informing employees of available legal remedies for discrimination and how to access them; (3) disseminating information to members of the public and specific stakeholders on rights and remedies regarding discrimination; (4) designing electronic pamphlets on referral of discrimination disputes, to be displayed on a wide range of platforms; and (5) airing radio announcements in different languages. Regarding the number of cases of discrimination, the Government indicates that, in the last three years there were six cases recorded by the Office of the Labour Commissioner and none registered by the courts. The Committee asks the Government to provide information on: (i) the progress made towards the adoption and implementation of the measures enumerated by the Government to make remedies more accessible for victims of discrimination on the basis of any of the prohibited grounds; and (ii) cases of discrimination dealt with by labour courts, if any, and their outcome.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. In its last comment, the Committee had requested the Government to clarify whether the definition of “sexual harassment” in section 5(7)(b) of the Labour Act covered sexual harassment due to a hostile environment and to adopt practical measures to address all forms of sexual harassment in employment and occupation. The Committee notes that in its report, the Government indicates that it welcomes the recommendation of the Committee to include a clear definition of “sexual harassment” that encompasses both quid pro quo and hostile environment sexual harassment, and that the Labour Act will be reviewed to include the definitions of “violence and harassment” and “gender-based violence and harassment” included in the Violence and Harassment Convention, 2019 (No. 190). The Committee also takes note of the indication that the Government, with the technical assistance of the Office, initiated a study on harassment and violence in the world of work to contribute to the formulation of appropriate policies and programmes aimed at preventing and eliminating violence and harassment in the world of work. The Committee requests the Government to provide information on: (i) any legislative amendment in relation with the definition of “sexual harassment” to ensure that it covers all forms of sexual harassment; (ii) 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.

Sexual orientation. The Committee had previously noted that the 2007 Labour Act (section 5(2)) does not explicitly prohibit discrimination on the ground of sexual orientation, which had been covered under the previous 1992 Labour Act. The Committee takes note of the indication by the Government that the Tripartite Task Force in charge of the review of the Labour Act will take into account the recommendations of the Committee regarding the importance of maintaining at least the same level of legislative protection. The Committee asks 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 and hopes that sexual orientation will be included in the list of prohibited grounds of discrimination in section 5(2) of the Labour Act.

Articles 1 and 2. Equality of opportunity and treatment of the members of indigenous communities. The Committee had requested the Government to: (1) indicate whether the draft White Paper on the Rights of Indigenous Peoples prepared in 2014 had been adopted and implemented; (2) provide information on the implementation of the National Human Rights Action Plan (NHRAP) 2015–2019 with respect to indigenous peoples; and (3) provide details on any recent study examining the situation of indigenous communities. The Committee takes note of the Government’s indications that the White Paper on the Rights of Indigenous Peoples has been finalized and validated by the Marginalized Community Leaders, other stakeholders and Government Officials in August 2018 and is currently being reviewed by the Government for final legal scrutiny. The Government further informs that the Division of the Marginalized Communities under the Office of the Vice President has adopted a series of measures in relation to access to education and training of marginalized communities in a number of regions, including by supporting the construction of schools, improving access to water, and supporting the agriculture in the communities. In addition, traditional and cultural activities were promoted by and integrated into the activities of the Ministry of Education, Arts and Culture. The Committee welcomes these initiatives as the traditional occupations performed by indigenous communities, such as farming, hunting and handicraft production, among others, are ‘occupations’ within the meaning of the Convention and often biased approaches towards the traditional occupations engaged in by certain ethnic groups, continue to pose serious challenges to the enjoyment of equality of opportunity and treatment in respect of occupation for many persons. The Committee asks the Government to provide information on the practical impact of the measures adopted by the Division of the 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.

General observation of 2018. With regard to the above issues, and in more general terms, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

Article 2. National policy to promote gender equality in employment and occupation. The Committee had requested the Government to provide information on the measures adopted in the context of the National Gender Policy (2010–20) or the affirmative action scheme, to increase girls and women’s access to education and employment, and to address gender stereotypes. The Committee takes note of the Government’s indication that it continues its implementation of the affirmative action scheme that contribute to the elimination of discrimination in the recruitment and promotion of women and of other designated groups such as workers with disabilities and workers belonging to indigenous peoples. The Government indicates that efforts were made to intensify awareness on equal representation at all levels, including with regard to political representation. The Committee notes from the Namibia National Report “Beijing+25” 2014–2019 that, despite achievements in increasing the number of women in politics and decision-making positions, the improvement of enrolment rate for women in tertiary education, the low participation of women in formal economic activities and the limited access of women to productive resources, especially land - as communal land rights owned by women stand at 28 per cent of all communal land rights registered – remain key challenges. The Committee asks the Government to provide information on the measures adopted to: (i) strengthen the implementation of the affirmative action scheme to increase the participation of women in employment at all levels and in all sectors of activity; (ii) improve the access of women to productive resources, in particular land and credit; and (iii) promote 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 Committee also asks the Government to provide information on the impact of these measures, including statistical data on educational and employment levels over time. , disaggregated by sex.

Enforcement. Ombudsman. The Committee had requested the Government to provide information on: (1) the results of the public hearings on discrimination and other measures implemented by the Ombudsman to address the issue; and (2) any cases of discrimination in employment and occupation dealt with by the competent authorities. The Committee takes note of the Government’s indication that the Labour Commissioner keeps statistics on all labour disputes received and appealed. The Committee asks once again the Government to provide information on any activities undertaken by the Ombudsman’s Office to address specifically discrimination in employment and occupation. Recalling that appropriate data and statistics are crucial in determining the nature, extent and causes of discrimination, the Committee asks the Government to 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.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 1(1)(b) of the Convention. Additional grounds, including HIV status. Legislation. In its previous comment, the Committee requested the Government to take steps to ensure coherence between section 5 of the Labour Act that defines discrimination and section 33 on dismissal, so as to prohibit dismissals on the grounds of HIV and AIDS status, the degree of physical or mental disability, and family responsibilities. The Committee notes that in its report, the Government indicates that the current Labour Act is under review and that section 33(3) will be amended to extend the prohibition of dismissal of an employee to HIV and AIDS status, the degree of physical or mental disability, and family responsibilities. The Committee also requested the Government to provide information on the cases of discrimination in relation to HIV and AIDS status dealt with by labour inspectors and labour courts. The Committee notes that, in this regard, the Government refers to a court case of 2000, in which the Court considered that the refusal to employ a person solely on the basis of this person’s HIV status was discriminatory. While taking note of this information, the Committee recalls that the fact that no new cases have been dealt with by the courts in the past twenty years may be an indicator of the lack of awareness, lack of access to remedies, or fear of retaliation. In that regard, the Committee wishes to point out that, according to the results of Namibia’s first ever population-based HIV survey, known as NamPHIA, the country has become the first country in Africa to have more than three-quarters of its HIV-affected population virally suppressed (meaning they cannot pass the virus on to someone else) and welcomes this remarkable achievement. However, it also notes that Namibia still ranks fifth highest in the world in terms of its HIV burden, with an estimated 12.1 per cent of adults aged 15–49 living with HIV, according to the latest figures of the Joint United Nations Programme on HIV/AIDS (UNAIDS). The Committee trusts the Government will effectively ensure that section 33(3) of the Labour Act will be amended to extend the prohibition of dismissal of an employee to HIV and AIDS status (actual or perceived), the degree of physical or mental disability, and family responsibilities and asks to be provided with a copy of the amendment once adopted. The Committee also asks the Government to: (i) adopt specific measures to ensure that workers who are victims of discrimination on the basis of HIV status (actual or perceived) have effective access to legal remedies; and (ii) provide information on the number of cases of discrimination based on HIV status and on their outcome.

Articles 2 and 5. Implementation of the equality national policy and affirmative action. The Committee recalls that in its previous comment, it noted: (1) the adoption of the National Human Rights Action Plan (NHRAP) 2015–19, which identified as one of the main areas of focus “the right not to be discriminated against”, in particular with respect to certain groups including women, indigenous peoples, persons with disabilities and LGBTI persons; and (2) the publication, in November 2017, of the Office of the Ombudsman’s Special Report on Racism and Discrimination, which included recommendations for the Government (formulation of programmes and strategies, awareness-raising, support to victims, etc.) and for the employers’ organizations (review of recruitment procedures, training to detect discrimination, establishment of procedures to deal with discrimination claims, etc.). The Committee further recalls that in the NHRAP, the following actions were envisaged: (1) a comprehensive review of the regulatory framework to assess non-discrimination compliance; (2) the development of a White Paper on Indigenous Peoples’ Rights; (3) research of comparable legal instruments providing protection of the rights of persons with disabilities and developing benchmarks (i.e. building design standards); (4) research and review of laws and policies to identify and rectify provisions that discriminate against “vulnerable groups” (i.e. women, children, elderly persons, sexual minorities, persons with disabilities and indigenous peoples); (5) the review of the Affirmative Action (Employment) Act (Act No. 29 of 1998) with a view to establishing the continued relevance of race as part of the affirmative action criteria; and (6) the review of the current Racial Discrimination Prohibition Act (Act No. 26 of 1991) with a view to enacting new legislation against discrimination. In follow-up to its request to provide information on the implementation of the NHRAP 2015–19 and the impact of the Office of the Ombudsman’s Special Report on Racism and Discrimination, the Committee notes that the Government merely indicates that the Namibia Employers’ Federation (NEF) stated that it has disseminated the recommendations of the Ombudsman and the NHRAP to all its members. The Committee asks the Government to provide detailed information on the concrete measures taken to implement the action planned in the National Human Rights Action Plan 2015 19, in particular the review of the legislative and regulatory framework, and information on any research undertaken, obstacles encountered and results achieved in this regard. It further asks the Government to indicate what follow-up it gave to the recommendations in the Office of the Ombudsman’s Special Report on Racism and Discrimination and the concrete steps taken to address such discrimination.

Designated groups. Persons disadvantaged on the ground of race, women and persons with disabilities. In its previous comment, the Committee requested the Government to: (1) step up its efforts to promote access to training and employment opportunities for workers belonging to the three “designated groups” pursuant to the Affirmative Action (Employment) Act, 1998; and (2) provide information on any legislative developments regarding the New Equitable Economic Empowerment Framework Bill 2015. The Committee notes that the Government refers to the 2016–2017 Employment Equity Commission (EEC) Report, in which the EEC has noted that, after 19 years of affirmative action implementation, “white employees”, who constitute a mere 4 per cent of the workforce occupy 56 per cent of positions at the Executive Director level and 26 per cent of management positions. In addition, the Government indicates that results achieved for persons with disabilities were still rather disappointing compared to other groups, as they are under-represented at almost every occupational level. The Committee welcomes the Government’s indication that the EEC introduced a number of measures to intensify it efforts towards workplace transformation, including the following initiatives: (1) the EEC identified some provisions of the Affirmative Action (Employment) Act, 1998 that required legislative redress and proposed amendments that are currently under consideration by the Labour Advisory Council (LAC); (2) the EEC engaged in the review of the EEC Employer’s Guidelines and the Regulations to the Affirmative Action (Employment) Act, 1998; (3) the EEC prosecutes employers for non-compliance with the provisions of the Affirmative Action (Employment) Act, 1998; (4) the EEC visits work places to provide training on affirmative action; (5) the EEC case management system was introduced in 2017 to manage the affirmative action report process; and (6) the EEC identifies areas in which research projects are particularly needed and, in this context, has singled out research projects on persons with disabilities. The Committee welcomes the Government’s efforts to deal with the persistent underlying causes of discrimination against the “designated groups”. The Committee asks the Government to continue: to (i) step up its efforts to promote access to training and employment opportunities for designated groups and review regularly the affirmative action measures to assess their relevance and impact and to provide information on any measures taken is this regard and the results achieved; and (ii) provide information on any follow-up given to the work of the Employment Equity Commission (EEC) related to the review of the Affirmative Action (Employment) Act, 1998, and on the activities of this Commission. The Government is asked once again to provide information on any legislative developments regarding the New Equitable Economic Empowerment Framework Bill 2015.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 1(1)(a) of the Convention. Discrimination based on sex. Sexual harassment. The Committee notes the Government’s indication that there is no code of good practice on sexual harassment. The Committee further notes from the Government’s report that the task force comprising representatives of workers, employers and the Government which was set up to review the Labour Act section by section will also re-examine the fines applicable in cases of sexual harassment. The Government adds that when this process is concluded, it will be in a position to plan sensitization activities through newspapers and radio stations. The Committee recalls that sexual harassment is defined by section 5(7)(b) of the 2007 Labour Act as follows: “any unwarranted conduct of a sexual nature towards an employee which constitutes a barrier to equality in employment where (i) the victim has made it known to the perpetrator that he or she finds the conduct offensive; or (ii) the perpetrator should have reasonably realised that the conduct is regarded as unacceptable, taking into account the respective positions of the parties in the place of employment, the nature of their employment relationships and the nature of the place of employment”. The Committee observes that while this definition appears to cover a wide range of conduct constituting quid pro quo sexual harassment in employment, it remains unclear whether it also covers conduct of a sexual nature that is not directed at a specific employee but which creates an intimidating, hostile or humiliating working environment. The Committee asks the Government to clarify the definition of “sexual harassment” in section 5(7)(b), specifying if it also covers sexual harassment due to a hostile environment, and if not, to take the opportunity arising from the review of the Labour Act to include a clear definition encompassing both quid pro quo and hostile environment sexual harassment to address effectively all forms of sexual harassment. The Government is asked to provide information on any legislative developments regarding sexual harassment, including addressing sanctions. The Committee also encourages the Government to take practical measures to address sexual harassment in employment and occupation, such as by the development of a code of practice, training for the social partners and enforcement authorities, awareness-raising campaigns, helplines and legal assistance or support units to assist victims, and asks the Government to provide information on any measures adopted or initiatives in this regard.

Sexual orientation. The Committee recalls that the 2007 Labour Act does not specifically prohibit discrimination on the ground of sexual orientation, which had been covered under the 1992 Act. The Committee notes from the Special Report on Racism and Discrimination published by the Office of the Ombudsman in November 2017 that lesbian, gay, bisexual, transgender and intersex (LGBTI) people continue to experience discrimination, including at their workplace. The prohibition of discrimination on the ground of sexual orientation no longer appears in the 2007 Labour Act (see paragraph 4.2.10.1). The Government indicates that the task force mentioned above will also address this issue and take into account the request from the Committee to ensure that workers have the same level of protection against discrimination on the ground of sexual orientation as provided for under section 5 of the Labour Act with respect to other grounds. The Committee recalls the importance of maintaining at least the same level of legislative protection against discrimination and trusts that, further to the review process of the Act, the Government will consider amending the Labour Act so as to include specific provisions prohibiting discrimination based on sexual orientation in employment and occupation.

Articles 1 and 2. Equality of opportunity and treatment of members of the Himba and San communities. Recalling its previous comments on the situation of indigenous peoples and the concerns raised by the United Nations Special Rapporteur on the rights of indigenous peoples (A/HRC/24/41/Add.1, 25 June 2013), the Committee notes the Government’s statement that it considers education as the most important tool for the development of the marginalized communities and therefore the bulk of the budget is allocated to education support. The Government states that 581 students have been supported. The Government also indicates that it has constructed several schools and established kindergartens for the Ovatue and Ovatjimba communities. With respect to job opportunities, the Committee notes the Government’s indication that both public and private sector organisations continuously submit recommendations in respect of young men and women from marginalized communities for consideration for employment in these organisations. Further, 1,100 households from these communities were resettled in farms since 2005. The Committee welcomes the publication of the Guide to Indigenous Peoples’ Rights in Namibia by the Office of the Ombudsman. The Guide highlights the progress made in law and practice by Namibia over the years but it also states that marginalized and indigenous peoples are still subject to precarious living conditions and remain some of the most marginalized and impoverished communities in the country. It concludes that their “situation would improve only after the rest of the population accept and regard them as equal”. The Committee further notes that the draft White Paper on the rights of indigenous peoples in Namibia, prepared in 2014, includes the Government’s commitment “to engender a better understanding of the cultures of indigenous peoples and to develop an appreciation that has the potential to lead to more respect and less discrimination against them”. The draft White paper also sets the following objectives: (i) developing national legislation protecting the rights of indigenous peoples and an integrated strategy; (ii) ensuring that they enjoy the same rights in practice as all other Namibians; (iii) ensuring their adequate consultation, participation and representation; (iv) improving access to land and ensuring secure land tenure strategies; (v) improving food security and supporting sustainable livelihoods; (vi) ensuring respect for indigenous cultures and bringing an end to discrimination against them; (vii) ensuring their equal access to education; (viii) improving their health status; and (ix) advancing gender equality for indigenous women and girls. With reference to its observation, the Committee recalls that the National Human Rights Action Plan (NHRAP) 2015–19 also deals with issues faced by marginalized groups, including indigenous peoples, with respect to the right to land, the right to education (low literacy level, high level of absenteeism and high rate of drop-outs), training and employment, and the right to non-discrimination.

With respect to the concerns previously raised on the situation of the rights of marginalized indigenous peoples over resources, the Committee notes the Government’s indication in its report that Namibia, being a unitary State, does not have a specific policy or legislative framework which provides for special treatment and benefits for people living in or near resource-rich areas. Due to the size of the investment required in the minerals extractive industry, the Government adds that it is almost impossible for local communities to invest and take part in projects. The Government adds that the possible benefits that could be conferred include preferential employment opportunities and the provision of services such as schools, clinics, and so forth. The Committee asks the Government to indicate whether the draft White Paper on the Rights of Indigenous Peoples prepared in 2014 has been finalized and is being translated into concrete action, and to provide information on any follow-up undertaken to promote equality of opportunity and treatment for indigenous peoples in education, training, employment and occupation, including traditional activities, and the results obtained. The Committee also asks the Government to provide detailed information on the measures adopted to implement the NHRAP 2015–19 with respect to indigenous peoples, including any steps taken to foster mutual tolerance and respect and to fight stigmatization and discrimination. The Government is further asked to provide details of any recent study assessing the needs and examining the situation of indigenous peoples, in particular in the fields of education, training, employment and occupation and including in their traditional activities.

Article 2. National policy to promote gender equality in employment and occupation. The Committee notes that the Government’s report only contains information on the labour market services, in particular on awareness-raising campaigns, but that it does not provide any information on the implementation of the National Gender Policy (2010–20). The Committee notes that in its final observations, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern about the high rates of unemployment among women and the continued occupational segregation between women and men in the labour market as well as the low representation of women in managerial positions in the private sector. With respect to education, the CEDAW recommended that girls and young women be encouraged to choose non-traditional fields of study and professions and that efforts be made to reduce the number of girls dropping out of school by facilitating the re-entry into school of young mothers after having given birth (CEDAW/C/NAM/CO/4-5, 28 July 2015, paragraphs 30–33). The Committee notes from the Employment Equity Commission (EEC) Annual Report 2015–16 that women were under-represented at the top three occupational levels. It also notes the detailed information and statistics on the situation of women in employment and occupation from the Namibia Gender Analysis 2017 prepared by the Legal Assistance Centre of Namibia, showing, inter alia, higher rates of unemployment for women, in particular young women (49 per cent compared to 38 per cent for young men in 2016) and occupational gender segregation in the labour market. The Committee asks the Government to provide detailed information on the steps taken, whether within the framework of the National Gender Policy (2010–20) or the affirmative action scheme, to increase the access of girls and women, including from indigenous peoples, to education, vocational training in non-traditional fields, and to employment, in particular at the managerial level. The Committee also asks the Government to provide information on the steps taken to address gender stereotypes regarding the capabilities and preferences of women and their role in society.

Monitoring and enforcement. Ombudsman. The Committee notes the general information provided by the Government on the awareness-raising campaigns run by the Ministry of Labour, Industrial Relations and Employment Creation and the dissemination of information brochures. The Committee notes with interest the numerous activities undertaken by the Office of the Ombudsman to address and eliminate discrimination in the country. It notes for instance that the Ombudsman held public hearings on racism, and racial and general discrimination in June 2017, to glean the public’s perception on such issues in order to help guide and revisit existing laws and formulate regulations. The Committee trusts that the Government will continue to provide support to the activities and research carried out by the Office of the Ombudsman. It asks the Government to provide information on the results of the public hearings on racial and general discrimination and any follow-up recommendations or steps taken in this respect. The Committee once again asks the Government to provide information on any cases of discrimination in employment and occupation dealt with by the competent authorities.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 1(1)(b) of the Convention. Additional grounds. Legislation. The Committee recalls its previous comments in which it noted that while the general non-discrimination provision of the Labour Act (section 5) includes the grounds of HIV and AIDS, degree of mental disability and family responsibilities, these grounds are not included under section 33 of the Act which prohibits unfair dismissal. The Committee notes the Government’s indication that a task force comprising representatives of workers, employers and the Government was set up and is reviewing the Labour Act section by section. The Government adds that the request from the Committee to consider including specific provisions prohibiting dismissal based on the grounds of HIV and AIDS status, the degree of physical or mental disability and family responsibilities with a view to ensuring consistency between sections 5 and 33 of the Labour Act, will be taken into consideration during this process. The Committee hopes that, further to the review process of the Act, the Government will amend the Labour Act so as to extend the prohibition on dismissal to ensure that dismissal on the grounds of HIV and AIDS status, the degree of physical or mental disability and family responsibilities is prohibited and therefore introduce consistency between sections 5 and 33 of the Labour Act. Recalling that section 6.2(2)(iii) of the 2007 National Policy on HIV and AIDS prohibits termination of employment on the grounds of HIV status or family responsibilities relating to HIV/AIDS, the Committee asks the Government to provide information on any case of a violation dealt with by labour inspectors and labour courts.

Articles 2 and 5. Implementation of the equality national policy and affirmative action. The Committee notes with interest the adoption of the National Human Rights Action Plan (NHRAP) 2015–19 which identifies as one of the main areas of focus “the right not to be discriminated against”, in particular with respect to certain groups including women, indigenous peoples, persons with disabilities and LGBTI persons. The Committee notes that the following actions are envisaged: (i) a comprehensive review of the regulatory framework to assess non-discrimination compliance; (ii) the development of a White Paper on Indigenous Peoples’ Rights; (iii) research of comparable legal instruments providing protection of the rights of persons with disabilities and developing benchmarks (i.e. building design standards); (iv) research and review of laws and policies to identify and rectify provisions that discriminate against “vulnerable groups” (i.e. women, children, elderly persons, sexual minorities, persons with disabilities and indigenous peoples); (v) the review of the Affirmative Action (Employment) Act (Act No. 29 of 1998) with a view to establishing the continued relevance of race as part of the affirmative action criteria; and (vi) the review of the current Racial Discrimination Prohibition Act (Act No. 26 of 1991) with a view to enacting new legislation against discrimination. In this regard, the Committee welcomes the publication by the Office of the Ombudsman of the Special Report on Racism and Discrimination that gives a full picture of the situation in the country, including in education and employment, and makes specific and detailed recommendations to the Government and the employers’ organizations to address all forms of discrimination in the country. Those recommendations include: (i) for the Government: to raise awareness among employers and employees of the prohibition of discrimination in employment and the remedies for victims; to develop and disseminate programmes and strategies to eliminate discrimination in employment; to provide support to victims; and to resolve speedily disputes relating to discrimination; and (ii) for employers’ organizations: to ensure that recruitment procedures, including job advertisements, are free from bias; to review qualifications and experience requirements to ensure their relevance for the job; to train senior and middle management to detect manifestations of discrimination in the workplace; to cooperate with workers’ organizations and representatives to develop procedures to deal with racial discrimination and other forms of discrimination, including sexual harassment; and to take steps to broaden the pool of candidates for jobs among “previously disadvantaged groups”. The Committee asks the Government to provide information on the implementation of the NHRAP (2015–19) regarding equality and non-discrimination issues, in particular with respect to any legislative developments and the adoption of practical measures such as awareness-raising campaigns for mutual tolerance and respect and appropriate training, and to communicate copies of any implementation or assessment reports available. The Committee also asks the Government to provide information on any measures taken or envisaged to implement the recommendations made by the Ombudsman in its report in the fields of education, training and employment, as well as information, where available, on any steps taken by employers’ organizations in this regard.

With respect to the implementation of the Affirmative Action (Employment) Act (Act No. 29 of 1998) to address the under-representation of persons within “designated groups” (i.e. “racially disadvantaged persons”, women, persons with disabilities), the Committee notes from the Government’s report containing data for the periods 2013–14 and 2014–15 and the Employment Equity Commission’s (EEC) Annual Report 2015–16, that there had been a 10 per cent increase in the number of reports received from relevant employers (that is, employers with 25 employees or more), totalling 763 for 2015–16. The number of employees covered by the affirmative action reports also increased by 18 per cent (199,126 employees across all industrial sectors for 2015–16). The Committee notes that, according to the EEC Report 2015–16, although the previous racially disadvantaged employees constituted 93 per cent of the total number of employees covered by the employers’ reports, only 28 per cent of them occupied positions at the executive director level (compared to 58 per cent occupied by “whites”). According to the same EEC Report, however, they improved their representation at the management level from 56 per cent in 2014–15 to 66 per cent in 2015–16. The EEC Report adds that for 2015–16, women represented only 44 per cent of employees at managerial positions (compared to 39 per cent for 2014–15), and persons with disabilities accounted for 0.4 per cent of the workforce. The Committee further notes from the Government’s report that the EEC pressed charges against a number of employers who failed to comply with the Affirmative Action Plan and 53 were convicted during 2014–15. In this regard, the Committee welcomes the Government’s indication that the assignment of a police officer to the EEC had a positive impact on the speedy and timely prosecution of the offenders. The Committee also notes the New Equitable Economic Empowerment Framework Bill 2015 which aims to promote the achievement of the constitutional right to equality and to bring about socio-economic transformation in order to enhance equity, social justice and empowerment of the previously disadvantaged majority, and to promote a higher economic growth rate, increased employment and more equitable income distribution. Noting the EEC Report’s conclusion that “the pace of progress towards an equitable representation [of persons from designated groups] is regrettably slow”, in particular at the upper levels of management and therefore at higher remuneration levels and noting too the under-representation of persons with disabilities at all occupational levels, the Committee asks the Government to step up its efforts to promote access to training and employment opportunities for designated groups, in particular at the managerial level and above, and to continue to review regularly the affirmative action measures to assess their relevance and impact. The Government is asked to provide information on any measures taken to this end and any legislative developments regarding the New Equitable Economic Empowerment Framework Bill 2015.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Sexual harassment. The Committee notes the Government’s indication that the Labour Advisory Council has developed a code of good practice on sexual harassment which has been submitted to the Minister of Labour and Social Welfare. The Government also indicates that the Office of the Labour Commissioner has published brochures including definitions of sexual harassment and remedies available to victims which are distributed at trade fairs, and are also available at every labour office in the country. The Committee also notes the Government’s indication that the Ministry of Labour plans to use a team of its experts to sensitize the public on the issue of sexual harassment. The Government states that it will continue to raise awareness related to sexual harassment by carrying out community outreach programmes. The Committee requests the Government to provide a copy of the code of good practice on sexual harassment, and to provide information on how the code will be implemented. The Committee also requests information on the content and status of the sensitization activities planned by the Ministry of Labour. The Committee once again requests information on judicial or administrative decisions defining and interpreting section 5(7)(b) of the Labour Act 2007.

Articles 1 and 2 of the Convention. Equality of opportunity and treatment of members of the Himba and San communities. The Government indicates that it carries out special programmes for the San and Himba communities under the Office of the Deputy Prime Minister. In this regard, the Government states that it has established houses, schools, clinics and a school feeding program which have contributed to the increase of school attendance among the Himba and San populations. The Committee notes from the report of the Special Rapporteur on the rights of indigenous peoples that despite the progress made in the realm of education, members of the Himba and San communities continue to lag behind other groups due to barriers which include school development fees, distances from schools, and bullying (A/HRC/24/41/Add.1, 25 June 2013, paragraphs 92–93). The Committee also notes the concerns raised by the Special Rapporteur on the situation of the rights of marginalized indigenous peoples over their traditional lands and resources, and in particular on the problem of landlessness of San groups (ibid., paragraphs 77–78). With regard to employment, the Government states in its report submitted to the Working Group on the Universal Periodic Review of the Human Rights Council that it has given directives to all Ministries and Regional Governments to apply affirmative action principles with regard to the employment of San people (A/HRC/WG.6/10/NAM/1, 10 November 2010, paragraph 11). The Committee notes that the office of the Ombudsman with the assistance of the ILO recently commenced the drafting of the white paper on the rights of indigenous peoples in Namibia, which will be based on the principles of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), and the United Nations Declaration on the Rights of Indigenous Peoples. The Committee also notes the Government’s indication that it has not yet considered the ratification of Convention No. 169. The Committee requests the Government to continue to provide information on the measures taken to improve the educational and employment situation of the Himba and San peoples, and to provide statistical information on the evolution in this regard. The Committee also asks the Government to provide information on specific measures taken or envisaged to address the rights of marginalized indigenous peoples over their traditional lands and resources. The Committee encourages the Government to consider the possibility of ratifying Convention No. 169, and requests it to continue to provide information on any progress in this respect. Please also continue to provide information on the progress of the white paper on the rights of indigenous peoples, and on any developments regarding the prospects with respect to the ratification of Convention No. 169.

Article 2. National policy to promote gender equality in employment and occupation. With regard to the Employment Services Act of 2011, which prohibits discrimination by private employment agencies in the advertisement of positions or in the recruitment or referral of persons for prospective employment, the Committee notes that 11 private employment agencies have been registered under the Act. The Committee notes the Government’s indication that an implementation plan for the Act which includes an awareness-raising strategy has been put into place. The Government also indicates that the National Gender Policy (2010–20) is in place, and that the Draft National Employment Policy was to be launched at the end of October 2013. The Committee notes from section 2.1.2 of the National Gender Policy that there are 102 girls enrolled in primary school for every 100 boys and 113 girls enrolled for every 100 boys in secondary school. Section 4.2 of the policy, which aims to continue to reduce gender inequalities in education and increase women’s access to vocational training, indicates that despite the overall improvement in the education of girls, significant regional disparities continue to exist. The Committee also notes that section 4.5 of the policy aims to increase women’s access to productive resources including land, employment and training. The Committee requests the Government to provide information on the content of the implementation plan put in place for the Employment Services Act of 2011, including information on specific awareness-raising activities. The Committee also requests the Government to provide information on the implementation of sections 4.2 and 4.5 of the National Gender Policy (2010–20), including measures taken to reduce regional disparities in education, and to increase women’s access to vocational training and employment.

Parts III and IV of the report form. Monitoring and enforcement. The Government indicates that there were no cases brought before the courts or other competent bodies relevant to non-discrimination provisions. The Committee notes that, where no cases or complaints are being lodged, this may indicate a lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals (General Survey on the fundamental Conventions, 2012, paragraph 870). The Committee therefore asks the Government to provide information on specific measures taken to raise awareness and promote the principle of equality of opportunity and treatment. The Committee also asks the Government to continue to provide information on any cases involving discrimination in employment and occupation dealt with by the competent authorities.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1(1)(b) of the Convention. Legislation. The Committee recalls its previous comments in which it noted that while the general non-discrimination provision of the Labour Act (section 5) includes the grounds of HIV and AIDS, degree of mental disability and family responsibilities, these grounds are omitted under section 33 of the Act which prohibits unfair dismissal. With regard to specific provisions addressing the issue of dismissal based on HIV status, the Government refers to sections 45 and 46 of the Affirmative Action (Employment) Act, Act No. 29 of 1998. The Committee notes however that sections 45 and 46 of the Affirmative Action (Employment) Act are general procedural provisions which govern the process of filing a complaint with the Labour Commission, and do not create any additional substantive protection prohibiting unfair dismissal based on the grounds of HIV and AIDS, degree of mental disability or family responsibilities. The Government indicates that it has a National Policy on HIV and AIDS, and that every workplace has a wellness unit which provides counselling and guidance. The Committee notes from the 2007 National Policy on HIV and AIDS that section 6.2(2)(iii) prohibits termination of employment which is solely on the grounds of HIV status or family responsibilities relating to HIV/AIDS. The Committee once again requests the Government to consider including specific provisions prohibiting dismissal based on the grounds of HIV and AIDS, degree of physical or mental disability and family responsibilities with a view to ensuring consistency between sections 5 and 33 of the Labour Act. The Committee also asks the Government to provide information on the application in practice of section 6.2 of the National Policy on HIV and AIDS.

Sexual orientation. In its previous comments, the Committee noted with regret that the Labour Act no longer prohibited discrimination based on sexual orientation. The Committee notes that the Government repeats its statement that article 10 of the Constitution prohibits discrimination based on sex, race, colour, ethnic origin, creed, and social or economic status. The Government also indicates that all workers have the same level of protection against discrimination under section 5(2) of the Labour Act. The Committee recalls however that neither section 5 nor any other section of the Labour Act prohibit discrimination based on the ground of sexual orientation. The Committee again requests the Government to ensure that workers have the same level of protection against discrimination on the ground of sexual orientation as provided under section 5 of the Labour Act with respect to other grounds, and asks the Government to provide information on specific measures taken in this regard.

Articles 2 and 5. Implementation of the national policy and affirmative action. The Committee notes that the Government indicates that employees from previously disadvantaged groups because of race comprised 30 per cent of executive directors, while the previously advantaged (“whites”) represented 59 per cent of executive directors and that during the 2011–12 review period, the representation of previously disadvantaged (“blacks”) in senior and middle management rose to 65 per cent compared to 62 per cent in the previous review period. Women comprised 42 per cent of executive directors, while accounting for 46 per cent of all employees. The Committee notes that persons with disabilities continued to comprise only 0.5 per cent of the total workforce. The Government indicates that at the time of reporting, 64 cases of non-compliance had been filed in court, and that the Employment Equity Commission (EEC) had considered 738 affirmative action reports submitted by employers. The Committee welcomes the Government’s indication that the EEC has increased its staff from nine to 15 members, and that a senior police officer has been assigned to the office to investigate cases of non-compliance and to bring defaulters before the court. With regard to access to vocational training, the Government indicates that section 17(2)(c)(iii) of the Affirmative Action (Employment) Act provides that persons from designated groups may receive preferential treatment in employment decisions, which pursuant to section 1 of the Act includes access to vocational guidance, training and placement services. The Committee notes that at the time of reporting, 47,518 employees had been trained, of which 10 per cent were executive directors and managers respectively, 44 per cent were women and 0.3 per cent were persons with disabilities. The Committee requests the Government to continue providing information on the application of the Affirmative Action (Employment) Act, including specific information on cases of employers’ non-compliance with the Act. Noting the Government’s indication that the Act does not cover discrimination based on the grounds of national extraction and social origin, the Committee asks the Government to provide information on how it is ensured that persons facing discrimination on these grounds have adequate access to employment and training opportunities. The Committee also requests the Government to provide information on measures taken to promote access to training not only for current employees, but also for those who are unemployed.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Sexual harassment. The Committee notes the Government’s indication that the Office of the Labour Commissioner arbitrated a case of sexual harassment and compensation had been awarded. The case involved the exchange of pornographic pictures through e-mail, a general occurrence in the workplace, which the Committee notes relates to hostile environment sexual harassment, as set out in its 2002 general observation. The Committee further notes the various measures taken by the Government to raise awareness on the Labour Act of 2007, such as distributing information at trade fairs and shows, and providing information on labour rights through the national radio in the languages of different ethnic groups. The Committee asks the Government to continue to provide information on relevant judicial or administrative decisions defining and interpreting section 5(7)(b) of the Labour Act 2007, and on practical measures taken in order to better prevent and prohibit sexual harassment at the workplace, with regard to both types of sexual harassment (quid pro quo and hostile work environment). Please give details of the content of the awareness raising activities undertaken, with regard to sexual harassment, and the impact thereof.

Articles 1 and 2 of the Convention. Equality of opportunity and treatment of members of the Himba and San communities in respect of access to particular occupations. The Committee notes the Government’s indication that after the approval by Cabinet of the San Development Programme (SDP), adopted for 2009–11, visits were conducted throughout the San and Himba communities, revealing that living conditions were undesirable and that they lacked basic social and economic infrastructure to participate meaningfully in national development programmes and processes. The Committee welcomes the various programmes that have been launched under the SDP, including the Education for San Learners, the Literacy Pilot Project, the Resettlement Programme for San Communities, the Employment Opportunities and the Bee-keeping and Honey-production Training Programme. The Government indicates in its national report submitted to the United Nations Human Rights Council, and examined under the Universal Periodic Review in 2011, that under the Employment Opportunities component of the Programme, directives have been given to all ministries and regional governments to apply affirmative action in the employment of San people (A/HRC/WG.6/10/NAM/1, 10 November 2010, paragraph 11). Among the recommendations that enjoyed the support of the Government following this report’s discussions in the Human Rights Council was the formulation of a white paper on indigenous peoples (A/HRC/17/14, paragraph 96). Noting that in 2008 the Government endorsed the United Nations Declaration on the Rights of Indigenous Peoples, the Committee hopes that the Government will consider ratifying the Indigenous and Tribal Peoples Convention, 1989 (No. 169), which provides for important elements for overcoming discrimination against indigenous peoples and ensuring their equality of opportunity and treatment. The important role of Convention No. 169 in achieving the objective of the Convention has been noted in the ILO Decent Work Country Programme (DWCP) for Namibia, adopted for 2010–14 (page 33). With respect to the Himba communities, the Committee notes that they are also covered by the Ovatue and Ovatkimba Communities Project under which measures were taken between 2007 and 2008, such as the resettlement of 300 persons, and the construction of houses, schools and clinics. The Committee asks the Government to provide information on the progress made in the formulation of a white paper on indigenous peoples. The Committee also asks the Government to continue providing information on measures taken under the San Development Programme to promote equality of opportunity and treatment of members of the San community and the results achieved, including with respect to the ILO-supported technical cooperation project implemented with the Office of the Deputy Prime Minister. The Committee also requests updated information on any studies conducted to further assess and address the situation of the members of the San and Himba communities in employment and occupation and the discrimination faced by them in this context, including with respect to their access to traditional lands and the promotion of their traditional occupations. The Committee asks the Government to provide information on any prospects regarding the ratification of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).

Article 2. National policy to promote gender equality in employment and occupation. The Committee welcomes the adoption of the Employment Service Act (Act No. 8 of 2011), and particularly notes that a non-discrimination provision has been included prohibiting discrimination by private employment agencies in the advertisement of positions for employment placement or in the recruitment of referral of persons for prospective employment with employers (section 26). The Committee also notes that under the DWCP, the Government will update the National Employment Policy, developed in 1997, with the assistance of the ILO. The Committee also notes that the National Gender Policy of 1997, aiming to set out principles for the implementation, coordination and monitoring of gender issues, has been reviewed for 2009–18. The Government indicates that the Ministry of Gender Equality and Child Welfare, with the support of the United Nations Development Programme has embarked on a gender responsive budgeting exercise in implementing national policies. The Committee welcomes the measures taken to raise awareness on gender issues under the National Gender Mainstreaming Programme, including gender sensitization workshops conducted to promote equal access to resources, services and job opportunities. The Committee asks the Government to provide information on measures taken to implement and raise awareness on the new Employment Service Act of 2011, including any cases brought before the courts applying section 26. The Committee asks the Government to provide copies of the updated versions of the National Gender Policy 2009–18 and the National Employment Policy once it has been finalized. The Committee also asks the Government to continue providing information on the measures taken under the Gender Mainstreaming Programme and the impact thereof.

Article 3(b). Educational programmes. The Committee notes the Government’s indication that the Affirmative Action (Employment) Act only covers the designated groups (racially disadvantaged people, women and persons with disabilities) and does not cover discrimination based on the grounds of national extraction and social origin. The Committee notes that the Employment Equity Commission continues to offer training for employers who request it on plans, goals and policies related to the Affirmative Action (Employment) Act. The Committee asks the Government to continue providing information on any measures taken to raise awareness and promote the principle of equality of opportunity and treatment with a view to combating discrimination, including on the grounds of national extraction and social origin.

Enforcement. The Government indicates that during the reporting period, the Office of the Ombudsman dealt with a variety of cases concerning discrimination based on race in remuneration, and that the Namibian police registered complaints regarding discrimination based on ethnic origin in promotion. The Committee asks the Government to provide more detailed information on any cases brought before the courts and other competent bodies relevant to non-discrimination provisions.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 1 of the Convention. Legislation. The Committee recalls its previous comments in which it noted that the prohibition of unfair dismissal in section 33 of the Labour Act 2007 omitted the grounds of HIV and AIDS, degree of physical or mental disability and family responsibilities, which are listed in the general non-discrimination provision of the Labour Act (section 5). The Committee notes that one case was filed on the basis of section 5 and that many cases were filed and solved through conciliation concerning section 33 of the Labour Act. In order to ensure that there is no discrimination on the basis of HIV and AIDS, the degree of physical or mental disability and family responsibilities, the Government indicates that the Ministry of Labour and Social Welfare regularly conducts inspections at the workplace and that workers can lodge complaints with the Office of the Employment Equity Commissioner, the Office of the Labour Commissioner and the Office of the Ombudsman, though it does not appear that any cases on the grounds of HIV and AIDS, physical or mental disability or family responsibilities have yet been brought before these bodies. The Committee asks the Government to consider including specific provisions prohibiting dismissal based on the grounds of HIV and AIDS, degree of physical or mental disability and family responsibilities, with a view to ensuring consistency between sections 5 and 33 of the Labour Act. The Committee also asks the Government to provide specific information on the practical measures taken in order to protect workers against unfair dismissal based on these grounds including information on cases brought before the Office of the Employment Equity Commissioner, the Office of the Labour Commissioner, or the Office of the Ombudsman, as well as on the steps taken to raise awareness of the available remedies.

Article 1(1)(b). Sexual orientation. The Committee recalls its previous comments in which it noted with regret that the Labour Act no longer prohibited discrimination based on the ground of sexual orientation, which had been the case under the previous legislation of 1992, and with respect to which the Government had indicated that it was covered by the Convention pursuant to Article 1(1)(b). The Committee notes that the Government refers to article 10 of the Constitution which prohibits discrimination based on sex, race, colour, ethnic origin, creed, and social or economic status, adding that inspections at the workplace are conducted in order to ensure that no discrimination takes place and that workers are treated equally, regardless of their sexual orientation. The Committee notes from the Report of the Working Group on the Universal Periodic Review of the United Nations Human Rights Council that while the Constitution outlaws discrimination of any kind, since independence, no cases of discrimination on the basis of sexual preference or orientation have been addressed by the courts (A/HRC/17/14, paragraph 21). The Committee recalls that where no cases or complaints are being lodged, this is likely to indicate a lack of an appropriate legal framework, lack of awareness of rights, lack of confidence in or absence of practical access to procedures, or fear of reprisals. The Committee asks the Government to ensure that workers have the same level of protection against discrimination on the grounds of sexual orientation as provided under section 5 of the Labour Act with respect to other grounds, and to provide information on specific measures taken in this regard.

Articles 2 and 5. Implementation of the national policy and affirmative action. The Committee notes from the 2008–09 annual report of the Employment Equity Commission (EEC) that the representation of previously disadvantaged groups because of race in management positions remained static. While accounting for 6 per cent of the total number of employees, those previously advantaged (whites), comprised 58 per cent of executive directors. The previously disadvantaged (blacks) comprised 28 per cent of executive directors, improving their share of representation by 2 per cent. Women accounted for 41 per cent of persons in managerial positions and 42 per cent of persons promoted to managerial positions. As to persons with disabilities, the Committee notes that they are under-represented at almost every level of employment, accounting for 0.5 per cent of the total workforce. The Committee welcomes the measures taken by the Government to raise awareness and to better implement affirmative action in employment and occupation, including, organising visits by the EEC at the workplace to provide information on affirmative action to relevant employers and workers, attending to complaints received and verifying the information contained in affirmative action reports received from relevant employers. The Government also indicated, however, that the shortage of staff remained a very serious constraint in the enforcement of the Affirmative Action (Employment) Act. The EEC indicates in its report that many complaints received alleged racial discrimination, and more specifically preference of non-Namibians above qualified Namibians by employers, referring to employers’ non-compliance with section 19 of the Affirmative Action (Employment) Act, obliging employers to give priority to candidates from designated groups (namely, disadvantaged persons because of race, women, and persons with disabilities). The Committee notes that 100 cases of non-compliance were filed against employers during the review period 2008–09. The Committee asks the Government to continue providing information on the application of the Affirmative Action (Employment) Act, including information on the impact it has had on the representation of designated groups in management positions, and specific information on cases of non-compliance or discrimination by employers brought before the Court. Please also provide specific information on the affirmative action plans, and on the possibility to increase the number of staff with a view to better enforcement of the Affirmative Action (Employment) Act. The Committee reiterates its request for information on measures taken to ensure and promote equality of opportunity and treatment of persons from designated groups in respect of access to vocational training with a view to fostering both their career advancement and their access to a wider range of jobs.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Sexual harassment. The Committee notes that a definition of sexual harassment similar to that in the 2004 Act has been included in the Labour Act, 2007. The Committee requests the Government to provide information on the following:

(i)    how the definition of sexual harassment contained in section 5(7)(b) of the Labour Act 2007 is interpreted and applied in practice, and provide information on any relevant judicial or administrative decisions handed down in this regard; and

(ii)   any practical measures taken or envisaged with a view to combating and preventing sexual harassment at the workplace, including information on any awareness-raising activities and the impact thereof.

Articles 1 and 2 of the Convention. Equality of opportunity and treatment of members of the Himba and San communities in respect of access to particular occupations. The Committee notes from the report on the mission to
Namibia of the African Commission’s Working Group on Indigenous Populations/Communities (adopted at the Commission’s 38th ordinary session in November–December 2005) that the majority of the San population lacks access to means of earning cash income, has no work prospects and no access to education and basic services and is often subjected to unfair labour practices. It notes that the literacy rate among the San is 23 per cent compared to the national literacy level of 66 per cent and that ethnically motivated ridicule from other students results in high school drop-out rates of San children. The Committee also notes that up to 70 per cent of the San population depends on food aid programmes and that, according to the report, access to land and land security for the San population remains the most critical element to be dealt with in order to address their situation. The Committee understands that members of Himba communities also face serious economic and social marginalization resulting in various obstacles to their access to employment and occupation. The Committee notes that the Government has put in place various programmes targeting Himba and San communities, including agricultural training and free education from grades 1–10 for the San, and veterinary services to assist Himba pastoralists with their herds. The Committee also understands that a San development programme was launched in 2005. The Committee requests the Government to provide information on the specific measures taken to combat discrimination and promote equality of opportunity and treatment of members of the San and Himba communities with regard to access to education, employment and occupation, including information on the measures taken under the San development programme. The Committee encourages the Government to carry out studies to further assess and address the situation of the members of the San and Himba communities in employment and occupation and the discrimination faced by them in this context.

National Policy to promote equality of opportunity and treatment in employment and occupation. The Committee reiterates its request for information on any relevant measures taken under the National Employment Policy, the National Gender Policy and the National Gender Action Plan and their impact on promoting equality of opportunity and treatment for men and women. Please also provide information on any further developments concerning the status of the Employment Services Bill.

Article 3(b). Educational programmes. The Committee notes that the International Day of Persons with Disabilities is commemorated every year under the auspices of the Ministry of Health and Social Services. The Committee welcomes this initiative and requests the Government to provide information on any other measures taken or envisaged to promote the observance of the principle of equality of opportunity and treatment beyond the case of persons with disabilities, including information on any sensitization activities and awareness-raising campaigns carried out with a view to combating discrimination and promoting the application of the principle of the Convention on the basis of all the grounds enumerated in the Convention, in particular, race, colour, national extraction and social origin.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. Legislative developments. The Committee notes that the Labour Act (No. 11 of 2007) entered into force on 1 November 2008. It notes with interest that the new Act, while essentially maintaining sections 5 and 7 of the former Labour Act, 2004, concerning non-discrimination and the resolution of related disputes, has broadened the scope and the definition of discrimination. Previously, section 5 provided that a person must not discriminate “in any employment practice”; the current section states that a person must not discriminate “in any employment decision … or adopt any requirement or engage in any practice which has the effect of discrimination”, which appears to cover indirect discrimination. The prohibited grounds, however, remain the same: race, colour, ethnic origin, sex, marital status, family responsibilities, religion, creed, political opinion, social or economic status, degree of physical or mental disability, AIDS or HIV status; or previous, current or future pregnancy. A new provision in section 33 has been added, providing that dismissal on the basis of an employee’s sex, race, colour, ethnic origin, religion, creed or social or economic status, political opinion or marital status is unfair dismissal. The Committee notes, however, that section 33 omits the additional grounds of AIDS or HIV status, degree of physical or mental disability and family responsibilities which are listed in section 5. Further, the Committee regrets that the 2007 Act does not prohibit discrimination on the grounds of sexual orientation, which had been covered under the 1992 Act, and which the Government had previously indicated was to be covered pursuant to Article 1(1)(b) of the Convention. The Committee requests the Government as follows:

(i)    to provide information on the practical application of sections 5, 7 and 33 of the Labour Act, 2007, including information on the number, nature and outcome of disputes brought before the competent authorities;

(ii)   to indicate the measures taken or envisaged to ensure that workers are protected against dismissal on the grounds of HIV or AIDS status, degree of physical or mental disability and family responsibilities, including whether any cases in this regard have been lodged with the courts or other competent bodies and the results thereof; and

(iii) the Committee again requests the Government to provide information on any measures taken or envisaged to ensure that workers are protected against discrimination on the grounds of sexual orientation.

Articles 2 and 5. Implementation of national policy and affirmative action. In its previous observation the Committee noted that, although the number of affirmative action plans received under the Affirmative Action (Employment) Act, 1998, had increased during 2005–06, this had not necessarily translated into an improvement of the representation of persons in designated groups in management positions. The Committee also noted that the reporting threshold was lowered to workplaces with more than 25 employees. The Committee notes from the 2007–08 annual report of the Employment Equity Commission that the representation of racially disadvantaged persons in managerial positions dropped by 5 per cent. The report also shows that racially disadvantaged persons represented approximately 90 per cent of the total number of employees, and accounted for 59 per cent of the workers in managerial positions but only 27 per cent of them held a post as executive director. Women represented only 16 per cent of the total numbers of executive directors while accounting for 41.47 per cent of employees. As to persons with disabilities, the Committee notes that they represented 0.4 per cent of the total number of employees reported and they held 0.8 per cent of the managerial positions. The Committee further notes that the scarcity of skilled persons from designated groups (racially disadvantaged persons, women, persons with disabilities) was cited by some employers as an obstacle to the implementation of affirmative action. The Committee also notes that persons from designated groups are concentrated in the public service and the service sector. The Committee requests the Government to continue to provide information on the measures taken or envisaged to implement affirmative action in employment and occupation, and on any measures to increase the impact thereof. Please include information on measures to ensure and promote equality of opportunity and treatment of persons from designated groups in respect of access to vocational training with a view to fostering both their career advancement and their access to a wider range of jobs. The Committee also requests the Government to supply information on any other policies and measures taken to promote and ensure the application of the principle of the Convention with respect to the designated groups, in cooperation with the social partners, and their impact.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Article 2 of the Convention. National policy to promote equality of opportunity and treatment in employment and occupation. The Committee thanks the Government for providing copies of the 1997 National Employment Policy, the 1997 National Gender Policy and the National Gender Action Plan (1998–2003). The Committee requests the Government to provide information on any measures implemented, including results achieved, under these policies with a view to promoting equal opportunities for all men and women to obtain decent work and employment. The Committee also requests the Government to provide information on further developments with regard to the Labour Bill 2006 and the Employment Services Bill.

2. Article 3(a). Cooperation with social partners and other appropriate bodies. The Committee notes from the Government’s report that the Employment Equity Commission has carried out a number of activities to raise awareness among employers of their obligations under the Affirmative Action (Employment) Act, 1998. The Committee requests the Government to continue to provide information on its collaboration with relevant stakeholders including employers’ and workers’ organizations to promote equality at work.

3. Article 3(b). Educational programmes. Please continue to provide information on any measures envisaged or undertaken to promote awareness and knowledge of the principle of equality in the context of employment and occupation.

4. Article 4. Individuals suspected of or engaged in activities prejudicial to the security of the State. In the absence of any information in the report regarding the Committee’s previous comments on this matter, the Committee reiterates its request to the Government to provide information concerning the application of this Article as well as specific information on the procedures establishing the right to appeal available to persons covered under Article 4 of the Convention.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Articles 1 and 2 of the Convention. Legislative developments. The Committee notes that section 5 of the Labour Act (No. 15 of 2004), which replaces the 1992 Labour Act, contains detailed provisions on equality of opportunity and treatment. The 2004 Act prohibits discrimination in any employment practice, directly or indirectly, against any individual on one or more of the following grounds: race, colour, ethnic origin, marital status or family responsibilities, religion, creed or political opinion, social or economic status, degree of physical or mental disability, AIDS or HIV status, and previous, current or future pregnancy (section 5(2)). “Employment practice” is broadly defined in section (1)(b) to cover all aspects of employment and occupation in accordance with Article 1(3) of the Convention. The Committee notes with satisfaction that the new legislation explicitly prohibits indirect discrimination and defines and prohibits sexual harassment (section 5(4)–(5)), as recommended by the Committee in its previous comments. In addition, the Committee notes that section 7 of the Labour Act 2004 provides that disputes concerning the application or interpretation of section 5 may be referred to the Labour Commissioner who may appoint a conciliator to attempt to resolve the dispute. If the dispute remains unresolved, an arbitrator is to be appointed. Persons who consider that their fundamental rights under section 5 have been infringed or threatened can also bring the matter before the competent courts. The Committee understands that a new Labour Act has been adopted in 2007, but has not yet been enacted. The Committee requests the Government to provide in its next report information on the practical application of sections 5 and 7 of the Labour Act, 2004, including information on the number, nature and outcomes of disputes brought before the competent authorities. In this regard, the Government is requested to indicate any measures taken to assist victims of discrimination to take legal action. The Committee also requests the Government to provide information on the status of the 2007 Labour Act.

2. Article 1(1)(b). Additional grounds. In its previous comments the Committee requested the Government to indicate whether the additional grounds set forth in the Labour Act, 1992 (economic status, marital status, sexual orientation, family responsibilities and disability) are to be covered by this Article of the Convention. In its report, the Government stated that “the additional grounds as set out in the Labour Act, 1992 (Act No. 6 of 1992) are to be covered under this section of the Convention”. In this regard, the Committee notes that the Labour Act, 2004, no longer prohibits discrimination based on the ground of sexual orientation, which was the case under the 1992 legislation. In the light of the Government’s statement indicating its acceptance that the ground of sexual orientation is to be included in the definition of discrimination for the purpose of this Convention, the Committee requests the Government to take measures to ensure that workers are protected against discrimination on the ground of sexual orientation, and to provide information in this regard.

3. Articles 2 and 5. Affirmative action. The Committee notes with interest that the Employment Equity Commission carried out an Affirmative Action Impact Assessment Study in 2004. The Study examined the results achieved between 2000 and 2004 in promoting equal participation in employment of persons belonging to one of the three designated groups (racially disadvantaged persons, women, persons with disabilities) under the Affirmative Action (Employment) Act, 1998. The study showed that most workplaces covered by the Act were still far from being balanced in terms of gender and colour. White men continued to dominate in management positions with women, particularly black women, being concentrated in lower job categories. Only some enterprises employed persons with disabilities and only very few of them implemented concrete programmes to accommodate persons with disabilities.

4. The Committee notes from the 2005–06 Annual Report of the Employment Equity Commission that, in response to the impact assessment study of 2004, assistance to and training for employers was stepped up in order to strengthen affirmative action at the enterprise level. In its report, the Employment Equity Commission concludes that, as a result of these efforts, the number of affirmative action reports received under the Act has increased during 2005–06. However, this has not necessarily translated into an improvement of the representation of persons in designated groups in management positions. In addition, the Committee notes that, while previously workplaces with more than 50 employees were required to report under the 1998 Act, the reporting threshold has been lowered to workplaces with more then 25 employees.

5. The Committee welcomes the continuing efforts made in Namibia to assess and strengthen national policies and mechanisms to promote equality in employment and occupation in a proactive manner. The Committee requests the Government to continue to provide information on the implementation of affirmative action in employment and occupation and on any measures taken to increase the impact of the laws and policies providing for such action. The Committee also requests the Government to provide more detailed information on the measures taken to respond to the training needs of women, racially disadvantaged persons and persons with disabilities in order to promote equal opportunities for all, including statistical information on their participation in training and education at all levels.

The Committee is raising other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the information in the Government’s first report on the Convention. It notes with interest the legislative initiatives taken by the Government relevant to the application of the principle of non-discrimination, particularly the enactment of the 1990 Constitution, the Racial Discrimination Prohibition Act No. 26 of 1991, the Labour Act No. 6 of 1992 and the Affirmative Action (Employment) Act No. 29 of 1998.

1. Article 1(1)(a) and (3) of the Convention. Prohibition of discrimination. The Committee notes that section 10(2) of the Constitution contains a general prohibition of discrimination based on "sex, race, colour, ethnic origin, religion, creed or social or economic origin" and that the Preamble of the Labour Act No. 6 of 1992 provides for regulation free from discrimination on the same grounds. Furthermore, the Racial Discrimination Prohibition Act No. 26 of 1991 prohibits discrimination on the basis of race, colour and ethnic origin with respect to employment, conditions of employment and dismissal. The Committee also notes the various sections under Part XIII of the Labour Act dealing with complaints in relation to unfair discrimination. It notes in particular that section 107(3) of the Labour Act provides a definition of direct sex-based discrimination with regard to conditions contained in an employment contract and that section 107(4) of the Labour Act lays down criteria for complaints of unfair discrimination in employment and occupation based on all the grounds in Article 1(1)(a) of the Convention. In addition, section 107(5)(b) defines employment and occupation in accordance with Article 1(3) of the Convention. Nonetheless, the Committee observes that there is no provision in the Labour Act explicitly prohibiting direct and indirect discrimination in employment and occupation with respect to all the Convention’s grounds. In absence of such a provision, the Committee asks the Government to provide information, including complaints received under Part XIII of the Labour Act, on how the abovementioned provisions and legislation are applied in practice. The Government may also wish to consider revising the Labour Act to prohibit explicitly direct and indirect discrimination in accordance with Article 1(1)(a) and (3), of the Convention.

2. Article 1(1)(a). Sexual harassment. The Committee notes that section 107(b) of the Labour Act 1992 lays down the criteria for complaints of harassment in employment based on, among other grounds, sex. However, noting the absence of an explicit provision in the Labour Act defining and prohibiting sexual harassment in the workplace, the Committee refers to its 2002 general observation on this Convention and asks the Government to indicate whether it envisages inserting such a provision in the Labour Act. In the meantime, the Government is asked to provide information, including complaints, on how sexual harassment is prohibited and prevented in both the private and public sectors.

3. Article 1(1)(b). Additional grounds. The Committee requests the Government to indicate whether the additional grounds set forth in the Labour Act (economic status, marital status, sexual orientation, family responsibilities and disability) are to be covered under this Article of the Convention.

4. Article 1(2). Inherent requirements of the job. The Committee notes that pursuant to section 107(2) of the Labour Act a person shall not be regarded to have been unfairly discriminated against, if that person is selected for purposes of employment or occupation according to reasonable criteria, including, but not limited to, the ability, capacity, productivity and conduct of that person or in respect of the operational requirements and needs of the particular occupation or work in the industry in question. Please provide information on how section 107(2) is applied in practice.

5. Article 2. National policy on equality of treatment and opportunity. The Committee notes with interest that both the Constitution and the Labour Act provide for affirmative action with respect to persons who have been disadvantaged by past discriminatory laws, policies or practices. In addition, the Affirmative Action (Employment) Act of 1998 provides for equal employment opportunities for women, racial and ethnic groups and persons with disabilities. Please provide practical information, such as reports and data, and any other relevant material, indicating the impact of the legislation on the promotion of equality of opportunity and treatment in respect of access to employment, vocational training and conditions of work with a view to eliminating any discrimination based on the grounds covered by the Convention, and in particular sex, race, colour and national extraction. Noting further that the Government has adopted a National Gender Policy and a National Gender Plan of Action, the Committee asks the Government to furnish copies of them.

6. Article 2. Application of national policy to all workers. The Committee notes that according to section 20(1) of the Affirmative Action (Employment) Act the minister identifies the employers who, as "relevant employers", shall comply with the Act. It asks the Government to provide a list of employers or categories of employers in the private sector that have been identified as relevant employers. The Committee notes that the Labour Act does not apply to workers in export processing zones (EPZs) but that under section (2) of the Export Processing Zones Act 1995 the Minister can make regulations relating to basic conditions of employment and termination of employment. It asks the Government to provide copies of any such regulations and to indicate how EPZ workers are protected against discrimination in accordance with the provisions of the Convention.

7. Article 3(a). Cooperation with social partners and other appropriate bodies. The Committee notes that the Labour Act provides for the establishment of the Labour Advisory Council and asks the Government to provide information on the manner in which the Council promotes the principle of the Convention in its consultations on national policy relating to employment and vocational training. The Committee would also be grateful if the Government would supply information on the activities of the Employment Equity Commission (EEC) in promoting the observance and acceptance of the national policy, including its activities in assisting employers to draft affirmative action plans and in disseminating information on the requirements of the Affirmative Action (Employment) Act.

8. Article 3(b). Educational programmes. The Government is requested to provide information on any public education or information programmes, including by the Employment Equity Commission, in place to promote the acceptance and observance of the national policy on equality of opportunity and treatment in employment and occupation.

9. Article 3(d). Pursuance of the policy with respect to the public service. The Committee notes that section 20(2)(a)(ii) of the Affirmative Action (Employment) Act allows the minister to name as relevant employer any office, ministry or agency as set out in the Public Service Act No. 13 of 1995. The Committee asks the Government to provide a copy of the Public Service Act and a list of relevant public service employers. Please also supply practical information, including statistics disaggregated by sex, that permit the Committee to assess how the principle of the Convention is ensured in the public service.

10. Article 3(e). Vocational training and guidance. The Committee notes the Government’s statement that the Employment Policy with regard to vocational training shall be concentrated on active labour market policies for the elimination of discriminatory practices and inequality in access to education and training. The Government is asked to provide a copy of the Employment Policy and further details regarding its practical implementation as well as information on practical steps undertaken to ensure the observance of the principle of the Convention in vocational training and placement services under the direction of a national authority.

11. Article 4. Individuals suspected or engaged in activities prejudicial to the security of the State. The Committee requests the Government to provide information concerning the practical application of this Article as well as specific information on the procedures establishing the right of appeal available to persons covered under Article 4 of the Convention.

12. Article 5. Affirmative action with respect to women, racial and ethnic groups. The Committee notes that the Constitution and the Labour Act permit taking affirmative action measures for certain persons who have been disadvantaged in the labour field by past discriminatory laws and practices. It requests the Government to furnish further details as to what particular kinds of actions and programmes are contemplated and the groups concerned, as well as information about any such efforts already in place or planned. Furthermore, the Committee notes with interest that sections 23(1) and 27(1) of the Affirmative Action (Employment) Act 1998 respectively require relevant employers in the private and public sectors to prepare and implement affirmative action plans and affirmative action reports concerning women, racial and ethnic groups. Noting further that the EEC is undertaking an affirmative action impact study of both the public and private sectors, the Committee would appreciate receiving information on the results of this study, when completed.

13. Part III and IV of the report form. Enforcement. The Committee notes the EEC’s role in reviewing affirmative action plans and reports and ensuring compliance with the Affirmative Action (Employment) Act. It also notes that the EEC, when disapproving affirmative action reports, may refer affirmative action reports to a review panel (section 35) for a final order. The Committee asks the Government to provide information on the number of cases referred by the EEC to the review panel, and on any complaints received and decisions made by the labour courts by any other courts or administrative bodies that relate to matters of discrimination in employment and occupation on any of the Convention’s grounds.

14. Part V of the report form. Practical application and statistics. Please provide the information requested in Part V of the report form on the practical application of the Convention. Such information could include available statistical data disaggregated by sex, race, ethnicity and religion on all aspects of employment and vocational training, reports, guidelines or publications, copies of legislation, as well as any other information that may enable the Committee to assess how the provisions of the Convention are applied in practice.