Namibia: Namrights Loses Case Over Olufuko

11 December 2019

The human rights organisation NamRights says it plans to appeal to the Supreme Court against a High Court judgement in which its attempt to have the olufuko traditional initiation ceremony declared as unconstitutional and a violation of human rights has been dismissed.

Acting judge Collins Parker dismissed NamRights' legal challenge against the olufuko ceremony, and directed the organisation to carry the legal costs of its opponents in the case in the Windhoek High Court on Friday last week.

The dismissal of NamRights' application against the government, the Ombalantu and Ombadja traditional authorities, former president Sam Nujoma and 15 other respondents, was based on a finding by acting judge Parker that the organisation did not have the required legal standing to ask the court to declare the olufuko ceremony as unconstitutional and a violation of human rights.

The judge noted that NamRights admitted that the organisation itself has not suffered any violation of its rights or the taking away of its legal entitlements. "It has come to court to ventilate the rights of some nameless, phantom girl children who are not over the age of 18," acting judge Parker stated.

He also noted that the girls at the centre of the olufuko ceremony that NamRights considers a violation of human rights are minors, and that the organisation "has not placed an iota of evidence before the court to explain the nature of the relationship [NamRights] has with the parents or guardians of the girl children, and why these parents or guardians are unable to approach the court themselves for relief".

It "would surely be a recipe for chaos and confusion in the business of the court" if any "busybody, meddling and misguided crusader" would be permitted to approach the court when they did not have the required legal standing in a case, acting judge Parker commented.

With NamRights' executive director, Phil ya Nangoloh, having argued that by virtue of its status as a known and widely recognised human rights organisation NamRights had the necessary legal standing to challenge the legality of the olufuko ceremony, the judge remarked that in Namibia's law, an applicant's expertise, whether real or assumed, could not on its own establish its legal standing.

NamRights reacted to the judgement by issuing a statement in which it said it would "leave no stone unturned" in approaching the Supreme Court to have acting judge Parker's "die-hard ruling" overturned.

In an affidavit filed at the court, Ya Nangoloh charged that the olufuko ceremony, which was revived at Outapi in the Omusati region in 2012, is a coercive sexual initiation ritual and a harmful traditional practice that encourages forced child marriages, early sexual activity, and early pregnancy and childbirth. Ya Nangoloh claimed the olufuko ceremony violated the constitutional rights of the girls participating in it, and is in breach of international human rights treaties to which Namibia is a party.

Except for asking the court to declare that the olufuko ceremony is a violation of constitutional rights and of internationally recognised human rights, NamRights also wanted the court to order the government, the Ombalantu and Ombadja traditional authorities and Nujoma to desist from organising, assisting with and celebrating the ceremony, and further wanted the government to be ordered to ensure that people encouraging or involved in harmful sexual initiation practices would face criminal and civil sanctions.

Ya Nangoloh represented NamRights in person when the case was heard on 19 November. Legal counsel Dennis Khama represented the government, the two traditional authorities and Nujoma on instructions from the government attorney.

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