Wakilii

J (Represented by the Initiative for Strategic Litigation in Africa (ISLA) & Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)) v Namibia (Communication 734-19 -)

African Commission on Human and Peoples' Rights · [2024] ACHPR 11 · 2024 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication before the African Commission on Human and Peoples' Rights alleging violations of the African Charter and Maputo Protocol arising from human trafficking for sexual exploitation and failure to investigate, prosecute, and provide redress
Decision
Communication declared admissible and violations found. Respondent State ordered to investigate, prosecute, and punish perpetrators; adopt legislative measures; and report on implementation within 180 days. Courts to determine quantum of financial compensation.

Observed later treatment

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Holding

The African Commission found Namibia violated Articles 2, 5, and 18(3) of the African Charter and Articles 2 and 4(2)(g) of the Maputo Protocol. The State failed to conduct an effective investigation into human trafficking for sexual exploitation, prematurely closed the investigation, detained the victim as an illegal immigrant, denied consular access, and failed to prosecute perpetrators. The Commission held that trafficking for sexual exploitation constitutes cruel, inhuman, and degrading treatment and discrimination against women. The State was ordered to investigate, prosecute, and punish perpetrators, and to have its courts determine financial compensation for the victim.

Outcome

Communication declared admissible and violations found. Respondent State ordered to investigate, prosecute, and punish perpetrators; adopt legislative measures; and report on implementation within 180 days. Courts to determine quantum of financial compensation.

Facts

A 24-year-old Kenyan woman was recruited online for employment in Namibia in May 2017. Upon arrival in Windhoek in June 2017, she was handed to men who confiscated her documents and phone. For three months, she was held captive and subjected to repeated rape, forced sexual acts, physical violence, and forced abortion. She escaped in October 2017 and reported to police as a trafficking victim, providing evidence. Police interrogated and threatened her with criminal sanctions, detained her as an illegal immigrant for over a month, refused to take her to the Kenyan High Commission, and surrendered her evidence to one of the alleged traffickers. The investigation was closed in June 2018 for lack of evidence. She was released only after producing an air ticket to Kenya.

Issues

  1. Whether the Respondent State violated Articles 5 of the Charter and Article 4(2)(g) of the Maputo Protocol for failing to take appropriate measures to prevent, condemn and respond to trafficking of the victim by providing redress and prosecuting the perpetrators
  2. Whether the Respondent State violated Articles 2 and 18(3) of the Charter and Article 2 of the Maputo Protocol by discriminating against the victim
  3. Whether the victim is entitled to remedies from the Respondent State

Orders

  • Declaration that the Respondent State has violated Articles 2, 5 and 18(3) of the Charter as well as 2 and 4(2)(g) of the Maputo Protocol
  • The Respondent State should expeditiously investigate, prosecute and punish the victim's perpetrators
  • The Respondent State's Courts of law hear arguments on and decide on the amount of financial compensation to be awarded to the victim for the violations found in the present Communication
  • The Respondent State adopt Legislative and other measures to address the problem of trafficking in person, especially of women and children for sexual exploitation into its territory
  • The Respondent State abide by its obligations to adopt legislative and other measures to protect women from gender-based violence through investigation, prosecution and punishment of their perpetrators
  • The Respondent State report on the steps it has taken to implement these decisions in accordance with Rule 112(2) of its Rules of Procedure, within one-hundred and eighty (180) days

Rules and key headnotes

State Responsibility — Due Diligence Obligation — Positive Duty to Protect from Private Actors
Article 1 of the African Charter imposes on States a positive obligation to protect human rights by preventing violations by private actors and by investigating, prosecuting, and punishing such violations. A State becomes responsible for violations committed by private individuals when it fails to exercise due diligence to prevent the violation or to provide victims with reparation.
Cruel, Inhuman and Degrading Treatment — Trafficking for Sexual Exploitation
Trafficking in persons for sexual exploitation, involving repeated rape, forced sexual acts, physical violence, and captivity, constitutes cruel, inhuman, and degrading treatment prohibited by Article 5 of the African Charter and Article 4(2)(g) of the Maputo Protocol. Such treatment reduces the victim from a human being with inherent worth to a mere object of sexual gratification.
Investigation — Effectiveness — Speed and Thoroughness
An effective investigation into allegations of cruel, inhuman, and degrading treatment must be prompt, impartial, independent, and thorough. Investigations must commence without delay, within hours or at most a few days, and be conducted expeditiously throughout. Failure to pursue plausible leads, overreliance on certain evidence, and premature closure of investigation render remedies ineffective.
Victims of Trafficking — Non-Punishment Principle — Detention
Victims of trafficking shall not be detained, charged, or prosecuted for the illegality of their entry or residence, or for unlawful activities to the extent that such activities are a direct consequence of their situation as trafficked persons. Detaining a trafficking victim as an illegal immigrant violates the State's obligation to provide redress and denies the victim their victim status.
Discrimination — Substantive Equality — Gender-Based Violence
Discrimination against women can be established without a male comparator where the violation arises from female-specific circumstances. Gender-based violence against women, including trafficking for sexual exploitation, is inherently discriminatory because it is rooted in gender-related factors and perpetuates women's subordinate position. A substantive equality approach considers the victim's context, positionality, and systematic disadvantage as a woman.
State Responsibility — Failure to Investigate — Discrimination
A State's failure to act with due diligence to protect women from violence constitutes a form of discrimination and denies women their right to equality before the law. Where authorities know or should know of a risk of gender-based violence and fail to investigate, prosecute, and punish perpetrators, the State provides tacit permission or encouragement to perpetrate such acts.
Admissibility — Exhaustion of Local Remedies — Ineffective Investigation
Local remedies are deemed exhausted where the State fails to conduct an effective investigation despite having notice of the allegations. Where a police investigation is closed for lack of evidence without pursuing plausible leads, and no judicial remedy exists for the victim to take the criminal case further, the requirement of exhaustion of local remedies is satisfied.

Legislation cited (23)

  • African Charter on Human and Peoples' Rights Article 1
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 18(3)
  • African Charter on Human and Peoples' Rights Article 56
  • Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (Maputo Protocol) Article 2
  • Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa (Maputo Protocol) Article 4(2)(g)
  • Combating of Trafficking in Persons Act 2018 (Namibia)
  • Criminal Procedure Act 25 of 2004 (Namibia) Section 2(1)
  • Prevention of Organized Crime Act 2004 (Namibia)
  • Combating of Rape Act 2000 (Namibia)
  • Combating of Immoral Practices Act 1980 (Namibia)
  • Immigration Control Act (Namibia)
  • International Co-operation in Criminal Matters Act 2000 (Namibia) Section 11
  • Vienna Convention on Consular Relations Article 36(1)
  • Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) Article 3(a)
  • UN Convention against Torture Article 16(1)
  • UN Convention against Torture Article 16(2)
  • CEDAW General Recommendation No. 19
  • CEDAW General Recommendation No. 25
  • CEDAW General Recommendation No. 28
  • CEDAW General Recommendation No. 35
  • CEDAW General Recommendation No. 38

Cases cited (46)

  • Zimbabwe Human Rights NGO Forum v Zimbabwe (Communication 245/02)
  • Selmouni v. France
  • Amnesty International and Others v. Sudan
  • R.B v. Hungary
  • Abubakar v. Ghana
  • Gabriel Shumba v Zimbabwe (Communication 288/04)
  • Haregewoin A. GabreSelassie & IHRDA v. Ethiopia
  • Desmond Nunugwo v. Federal Republic of Nigeria
  • Chacha v The United Republic of Tanzania (Application 003/2012)
  • Michael Majuru v Zimbabwe (Communication 308/05)
  • Sir Dawda K. Jawara v The Gambia (Communication 147/95-149/96)
  • Monim Elgak, Osman Hummeida and Amir Suliman v Sudan (Communication 379/09)
  • Article 19 v Eritrea (Communication 275/03)
  • Darfur Relief and Documentation Centre v Sudan (Communication 310/05)
  • Social and Economic Rights Action Centre (SERAC) v Nigeria (Communication 155/96)
  • Commission Nationale des Droits de l'Homme et des Libertes v Chad
  • International Pen and Others v Nigeria
  • Osman v the United Kingdom
  • Velasquez Rodriguez v Honduras
  • X and Y v Netherlands
  • Equality Now and Ethiopian Women Lawyers Association v Federal Republic of Ethiopia (Communication 341/2007)
  • Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt (Communication 323/2006)
  • Dr. Farouk Mohamed Ibrahim v Sudan (Communication 386/10)
  • Givemore Charandura v Republic of Zimbabwe (Communication 351/2007)
  • David Kanyandago v Angola (Communication 413/12)
  • Sudanese Civil Society Organizations v Sudan (Communication 402/11 & 412/12)
  • Doebbler v Sudan (Communication 235/2000)
  • Huri-Laws v Nigeria (Communication 225/98)
  • Mikheyev v. Russia
  • Pihoni v Albania
  • Zongo and Others v Burkina Faso
  • S v. Lukas (2015)
  • S v. Koch (2018)
  • IHRDA & WARDC (on behalf of Mary Sunday) v The Federal Republic of Nigeria
  • Hadijatou Mani Koraou v The Republic of Niger
  • Dorothy Njemanze and 3 others v Federal Republic of Nigeria
  • DH v. Czech Republic
  • Jurcic v. Croatia
  • Opuz v. Turkey
  • Talpis v. Italy
  • Eremia v. the Republic of Moldova
  • T.M. and C.M. v. the Republic of Moldova
  • Maria Da Penha Maia Fernandes v Brazil
  • LaVende (Germany v U.S.A)
  • Avena (Mexico v USA)
  • Ireland v UK

Full judgment

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J (Represented by the Initiative for Strategic Litigation in Africa (ISLA) & Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN)) v Namibia (Communication 734-19 -) [2024] ACHPR 11 (8 March 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.