Divorce, rape in spotlight
In a bid to improve all-round justice, amendments to Namibia's divorce and rape laws are currently being made.
30 September 2019 | Ministries
The justice ministry recently confirmed that it aims to table both the divorce and rape amendment bills by November this year. Both are still in the law-making process and are currently with the directorate of legislative drafting.
If given the green light, the divorce amendment bill will dramatically ease divorce proceedings by moving away from the current fault-based system and reducing costs associated with lawyers and advocates, as well as speed up the process.
Cheaper divorces will be as a result of allowing divorce proceedings to be handled in regional courts instead of the pricey High Court where an advocate must act on the couple's behalf.
Moreover, the bill seeks to address issues around spousal maintenance to make it fairer and more realistic.
In a brief statement issued in September, the ministry explained that under the current system, divorce proceedings require one party to accept fault for the failure of the marriage.
The new law will require only one ground for divorce, namely irretrievable breakdown, thereby removing the fault requirement and limit pitting spouses against each other.
Moreover, in divorces where there are no children or disputes involved, a paper application can be lodged jointly by spouses, at a regional court, and eliminate the need for more costly and drawn-out actions.
Last year, legal policy expert Dianne Hubbard of the Legal Assistance Centre said the current difficulties underpinning divorce proceedings in Namibia often contribute to domestic violence, by “trapping people in unhappy or violent relationships”.
Moreover, while many couples separate without a formal divorce, this leaves their property rights unresolved.
Hubbard added that by easing access to divorce applications, conflict between couples will be lessened, and this can “only benefit the children of the marriage”.
The justice ministry at the start of September noted that the rape amendment bill is aimed at making the act more “victim-centered by placing additional duties on the prosecutor when dealing with bail applications of the accused and provides guidelines to service providers for proper, sensitive conduct towards victims of rape”.
In a cabinet memorandum on the amendments, lawmakers suggested that the law should give prosecutors a clear duty to ensure that survivors of rape are given decent orientation to the court and court procedures prior to trial, in line with procedures for vulnerable witnesses.
The amendments will also deepen and strengthen the rights and protections of survivors during the trial process.
The focus on protecting survivors and improving the law as it relates to rape, could also spill over to impact the Criminal Procedure Acts of 1977 and 2004, as well as the Combating of Immoral Practices Act of 1980.
Lawmakers explained that of the recommendations on the table that is the basis for the draft rape amendment bill of 2018, is a need to improve coverage of coercive circumstances related to rape, including an abuse of power or authority.
Moreover the law should be clarified to end confusion on attempted rape, as this issue is “currently misunderstood in practice”.
The recommendations also highlighted that the minimum sentences for rape apply with equal force to attempted rape, but on this issue there is also frequently confusion and there is a need for a insertion of a specific punishment for attempted rape to clarify matters.
Lawmakers advised that the law can be improved by the imposition of the highest category of minimum sentence for the rape of persons with physical and mental disabilities, and that regional magistrates should be empowered to impose any penalty of the law.
They also noted there should be stricter limits on what portion of a minimum sentence must be served by offenders before they are eligible for parole.
The recommendations for the amendment bill also advise an insertion that courts may not draw any adverse inference solely from the fact that no semen or vaginal fluid was found on any part of the body of a complainant, or solely from evidence that the hymen is unbroken.
Lawmakers noted that there is conclusive evidence that it is a “myth that penetration of the vagina necessarily breaks the hymen”.
Other recommendations revolve around the protection of survivors from contact of the accused during the trial and before.