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Provisions related to forced marriage in Namibia are found in the 2018 Combating of Trafficking in Persons act, which addresses forced marriage at article 3 and 4, with a potential penalty of fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding 30 years or both.
Provisions requiring consent to marriage in Namibia are found in the constitutional law 1990, article 14(2) of which states that marriage shall be entered into only with the free and full consent of the intending spouses.
There appears to be no legislation in Namibia that prohibits servile matrimonial transactions.
Provisions related to marriage trafficking in Namibia are found in the COMBATING OF TRAFFICKING IN PERSONS ACT OF 2018, which prohibits trafficking for slavery or practices similar to slavery, including forced marriage, at Chapter 1, with a potential penalty of imprisonment not exceeding 30 years or a fine not exceeding N$1 000 000 or both.
The minimum age for marriage in Namibia without parental permission is 21, without differentiation by gender, as set out on the Article 24 of the 1961 Marriage Act. The minimum age for marriage in Namibia with parental permission is 18, without differentiation by gender, as set out on Article 26 of the 1961 Marriage Act, as amended by the 1996 Married Persons Equality Act. Where marriages are conducted involving a person below the minimum age, the marriage is invalid, as set out on 26 of the 1961 Marriage Act, as amended by the 1996 Married Persons Equality. However, marriages below this age may permitted in particular cases with the written permission of the Ministry or any staff member in the Public Service authorised by the Minister, as set out on as set out on Article 26 of the 1961 Marriage Act, as amended by the 1996 Married Persons Equality Act. These exceptions are not differentiated by gender.
Africa
Not party to a court
Mixed
Article 7. Protection of liberty
No persons shall be deprived of personal liberty except according to procedures established by law.
Article 8. Respect for human dignity
1. The dignity of all persons shall be inviolable.
2. a. In any judicial proceedings or in other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed.
b. No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.
Article 9. Slavery and forced labour
1. No persons shall be held in slavery or servitude.
2. No persons shall be required to perform forced labour.
3. For the purposes of this Article, the expression “forced labour” shall not include:
a. any labour required in consequence of a sentence or order of a Court;
b. any labour required of persons while lawfully detained which, though not required in consequence of a sentence or order of a Court, is reasonably necessary in the interests of hygiene;
c. any labour required of members of the defence force, the police force and the correctional service in pursuance of their duties as such or, in the case of persons who have conscientious objections to serving as members of the defence force, any labour which they are required by law to perform in place of such service;
d. any labour required during any period of public emergency or in the event of any other emergency or calamity which threatens the life and well-being of the community, to the extent that requiring such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation;
e. any labour reasonably required as part of reasonable and normal communal or other civic obligations.
Article 14. Family
1. Men and women of full age, without any limitation due to race, colour, ethnic origin, nationality, religion, creed or social or economic status shall have the right to marry and to found a family. They shall be entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 15. Children’s rights
2. Children are entitled to be protected from economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education, or to be harmful to their health or physical, mental, spiritual, moral or social development. For the purposes of this Sub-Article children shall be persons under the age of sixteen (16) years.
3. No children under the age of fourteen (14) years shall be employed to work in any factory or mine, save under conditions and circumstances regulated by Act of Parliament. Nothing in this Sub-Article shall be construed as derogating in any way from Sub-Article (2) hereof.
4. Any arrangement or scheme employed on any farm or other undertaking, the object or effect of which is to compel the minor children of an employee to work for or in the interest of the employer of such employee, shall for the purposes of Article 9 hereof be deemed to constitute an arrangement or scheme to compel the performance of forced labour.
Article 21. Fundamental freedoms
1. All persons shall have the right to:
f. withhold their labour without being exposed to criminal penalties;
g. move freely throughout Namibia;
j. practise any profession, or carry on any occupation, trade or business.Namibia Constitution
3. Prohibition and restriction of child labour
(1) A person must not employ or require or permit a child to work in any circumstances prohibited in terms of this section.
(2) A person must not employ a child under the age of 14 years.
(3) In respect of a child who is at least aged 14, but under the age of 16 years, a person –
(a) must not employ that child in any circumstances contemplated in Article 15(2) of the Namibian Constitution;
(b) must not employ that child in any circumstances in respect of which the Minister, in terms of subsection (5)(a), has prohibited the employment of such children;
(c) must not employ that child in respect of any work between the hours of 20h00 and 07h00; or
(d) except to the extent that the Minister by regulation in terms of subsection (5)(b) permits, must not employ that child, on any premises where –
(i) work is done underground or in a mine;
(ii) construction or demolition takes place;
(iii) goods are manufactured;
(iv) electricity is generated, transformed or distributed;
(v) machinery is installed or dismantled; or
(vi) any work-related activities take place that may place the child’s health, safety, or physical, mental, spiritual, moral or social development at risk.
(4) In respect of a child who is at least aged 16 but under the age of 18 years, a person may not employ that child in any of the circumstances set out in subsection (3)(c) or (d), unless the Minister has permitted such employment by regulation in terms of subsection (5)(c).
(5) The Minister may make regulations to –
(a) prohibit the employment of children between the ages of 14 and 16 at any place or in respect of any work;
(b) permit the employment of children between the ages of 14 and 16 in circumstances contemplated in subsection (3)(d), subject to any conditions or restrictions that may be contained in those regulations;
(c) permit the employment of children between the ages of 16 and 18 in circumstances contemplated in subsections (3)(c) or (d), subject to any conditions or restrictions that may be contained in those regulations.
(6) It is an offence for any person to employ, or require or permit, a child to work in any circumstances prohibited under this section and a person who is convicted of the offence is liable to a fine not exceeding N$20 000, or to imprisonment for a period not exceeding four years, or to both the fine and imprisonment.
4. Prohibition of forced labour
(1) A person must not directly or indirectly cause, permit or require any individual to perform forced labour.
(2) Forced labour does not include any labour described in Article 9(3)(a) to (e) of the Namibian Constitution and, for the purposes of this Act, ‘forced labour’ includes –
(a) any work or service performed or rendered involuntarily by an individual under threat of any penalty, punishment or other harm to be imposed or inflicted on or caused to that individual by any other individual, if the first mentioned individual does not perform the work or render the service;
(b) any work, performed by an employee’s child who is under the age of 18 years, if the work is performed in terms of an arrangement or scheme in any undertaking between the employer and the employee;
(c) any work performed by any individual because that individual is for any reason subject to the control, supervision or jurisdiction of a traditional leader in that leader’s capacity as traditional leader.
(3) It is an offence for any person to directly or indirectly, cause, permit or require an individual to perform forced labour prohibited under this section and a person who is convicted of the offence is liable to a fine not exceeding N$20 000, or to imprisonment for a period not exceeding four years or to both the fine and imprisonment Namibia Labour Act
1. Definitions and interpretation
“trafficking in persons” means the recruitment, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation and includes any attempt, participation or organising of any of these actions.
Exploitation includes, at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; and
15. Trafficking in persons
Any person who participates in or who aids and abets the trafficking in persons, as contemplated in Annex II of the Convention, in Namibia or across the border to and from foreign countries commits an offence and is liable to a fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding 50 years.Namibia Prevention of Organised Crime Act
Chapter 1- Introductory provisions
Definitions
(1) In this Act, unless the context otherwise indicates
[…]
“debt bondage” means the involuntary status or condition that arises from a pledge by a person of –
(a) his or her personal services;
(b) the personal services of another person under his or her control, as security for a debt owed or claimed to be owed, including a debt incurred or claimed to be incurred after the pledge is given, by that person if the –
(i) debt owed or claimed to be owed, as reasonably assessed, is manifestly excessive;
(ii) length or nature of the services are not limited and defined; or
(iii) value of the services as reasonably assessed is not applied towards the liquidation of the debt or purported debt
[…]
“exploitation” includes, but is not limited to –
(a) prostitution or any form of sexual exploitation;
(b) forced labour or forced services, prohibited child labour or other economic exploitation;
(c) slavery or practices similar to slavery, including debt bondage or a forced marriage;
(d) involuntary servitude;
(e) criminal exploitation;
(f) removal of organs or body parts; or
(g) the impregnation of a female person against her will for the purpose of selling the child when the child is born;
[…]
“trafficking in persons” has the meaning as assigned to it by section 3 of this Act
[…]
(2) For the purposes of subsection (1)
“forced labour or services” means labour or services obtained or maintained through threats, the use of force, intimidation, exploitation or other forms of coercion or physical restraint;
“forced marriage” means a marriage which is without the free and full consent of both spouses or is in contravention of any of the laws on civil and customary marriages in Namibia;
“prohibited child labour” means any child labour which is in contravention of the Namibian Constitution, the Labour Act, 2007 (Act No. 11 of 2007) or the Child Care and Protection Act;
“removal of organs or body parts” means the removal or trade in any human organ or other body part in contravention of a law;
“servitude” means a condition in which the labour or services of a person are provided or obtained through threats of harm to that person or another person or through any scheme, plan or pattern intended to cause the person to believe that if the person does not perform the labour or services in question the person or another person would suffer harm; and
“sexual exploitation” means the commission of any offence of a sexual nature in terms of a law against a person.
Prohibition of trafficking in persons
(1) A person commits an offence of trafficking in persons if he or she intentionally recruits, transports, delivers, transfers, harbours, sells, exchanges, leases or receives a person by means of –
(a) threat;
(b) use of force or other forms of coercion;
(c) abduction;
(d) fraud;
(e) deception;
(f) kidnapping;
(g) abuse of power or abuse of position of vulnerability; or
(h) giving or receiving of payments or benefits to obtain the consent of a person who has control over another person, for the purposes of exploitation.
(2) The recruitment, transportation, transfer, harbouring or receiving of a child for the purposes of exploitation is trafficking in persons even if this does not involve any of the means set out in paragraph (a), (b), (c), (e), (f), (g) or (h) of subsection (1)
(3) A person who facilitates or secures the adoption of a child, for the purpose of exploiting that child, commits an offence.
(4) A person convicted of an offence under subsection (1), (2) or (3) –
(a) in the case of a first conviction, is liable to a fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding 30 years or to both such fine and such imprisonment; and
(b) in the case of a second or subsequent conviction, is liable to a fine not exceeding N$2 500 000 or to imprisonment for a period not exceeding 50 years or to both such fine and such imprisonment
Debt bondage
A person who intentionally engages in conduct that causes another person to enter into debt bondage commits an offence and is on conviction liable –
(a) in the case of a first conviction, to a fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding 30 years or to both such fine and such imprisonment; and
(b) in the case of a second or subsequent conviction to a fine not exceeding N$2 500 000 or to imprisonment for a period not exceeding 50 years or to both such fine and such imprisonment.
Using services of victims of trafficking
(1) A person commits an offence if he or she intentionally benefits, financially or otherwise, from the services of a victim of trafficking in persons or uses or allows another person to use the services of a victim of trafficking in persons.
(2) A person who is convicted of an offence under subsection (1), is liable –
(a) in the case of a first conviction, to a fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding 30 years or to both such fine and such imprisonment; and
(b) in the case of a second or subsequent conviction, to a fine not exceeding N$2 500 000 or to imprisonment for a period not exceeding 50 years or to both such fine and such imprisonment.
Article 14. Family
Namibia Constitution 1990 (Amendments 2010) – Constitute Project – English (PDF)
Chapter 1- Introductory provisions
Definitions
In this Act, unless the context otherwise indicates
[…]
“exploitation” includes, but is not limited to –
(a) prostitution or any form of sexual exploitation;
(b) forced labour or forced services, prohibited child labour or other economic exploitation;
(c) slavery or practices similar to slavery, including debt bondage or a forced marriage;
(d) involuntary servitude;
(e) criminal exploitation;
(f) removal of organs or body parts; or
(g) the impregnation of a female person against her will for the purpose of selling the child when the child is born;
[…]
“trafficking in persons” has the meaning as assigned to it by section 3 of this Act
[…]
For the purposes of subsection (1)
…
“forced marriage” means a marriage which is without the free and full consent of both spouses or is in contravention of any of the laws on civil and customary marriages in Namibia;
…
“sexual exploitation” means the commission of any offence of a sexual nature in terms of a law against a person.
3. Prohibition of trafficking in persons
(1) A person commits an offence of trafficking in persons if he or she intentionally recruits, transports, delivers, transfers, harbours, sells, exchanges, leases or receives a person by means of –
(a) threat;
(b) use of force or other forms of coercion;
(c) abduction;
(d) fraud;
(e) deception;
(f) kidnapping;
(g) abuse of power or abuse of position of vulnerability; or
(h) giving or receiving of payments or benefits to obtain the consent of a person who has control over another person, for the purposes of exploitation.
(2) The recruitment, transportation, transfer, harbouring or receiving of a child for the purposes of exploitation is trafficking in persons even if this does not involve any of the means set out in paragraph (a), (b), (c), (e), (f), (g) or (h) of subsection (1)
(3) A person who facilitates or secures the adoption of a child, for the purpose of exploiting that child, commits an offence.
(4) A person convicted of an offence under subsection (1), (2) or (3) –
(a) in the case of a first conviction, is liable to a fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding 30 years or to both such fine and such imprisonment; and
(b) in the case of a second or subsequent conviction, is liable to a fine not exceeding N$2 500 000 or to imprisonment for a period not exceeding 50 years or to both such fine and such imprisonment
8. Using services of victims of trafficking
(1) A person commits an offence if he or she intentionally benefits, financially or otherwise, from the services of a victim of trafficking in persons or uses or allows another person to use the services of a victim of trafficking in persons.
(2) A person who is convicted of an offence under subsection (1), is liable –
(a) in the case of a first conviction, to a fine not exceeding N$1 000 000 or to imprisonment for a period not exceeding 30 years or to both such fine and such imprisonment; and
(b) in the case of a second or subsequent conviction, to a fine not exceeding N$2 500 000 or to imprisonment for a period not exceeding 50 years or to both such fine and such imprisonment.
14.
(1) Notwithstanding anything to the contrary contained in any law or the common law, but subject to any order of a competent court with regard to sole guardianship of a minor child or to any right, power or duty which any other person has or does not have in respect of a minor child, the father and the mother shall have equal guardianship over a minor child, including an adopted child, of their marriage, and such guardianship shall, subject to subsection (2), with respect to rights, powers and duties be equal to the guardianship which every guardian immediately before the commencement of this Act had under the common law in respect of his or her minor children.
(2) Where both the father and the mother have guardianship of a minor child, each one of them is competent, subject to any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or power or to carry out any duty arising from such guardianship: Provided that, unless a competent court orders otherwise, the consent of both parents shall be necessary in respect of –
(a) the contracting of a marriage by the minor child;
(b) the adoption of the minor child;
(c) the removal of the minor child from Namibia by either of the parents or any other person;
(d) the application for the inclusion of the name of the minor child in the passport issued or to be issued to any one of the parents;
(e) the alienation or encumbrance of immovable property or any right to immovable property vesting in the minor child.
23. Objections to marriage
(1) Any person desiring to raise any objection to any proposed marriage shall lodge such objection in writing with the marriage officer who is to solemnize such marriage.
(2) Upon receipt of any such objection the marriage officer concerned shall inquire into the grounds of the objection and if he is satisfied that there is no lawful impediment to the proposed marriage, he may solemnize the marriage in accordance with the provisions of this Act.
(3) If he is not so satisfied he shall refuse to solemnize the marriage.
Republic of Namibia 9 Annotated Statutes Marriage Act 25 of 1961 (SA)
[section 23 substituted by Act 51 of 1970]
24. Marriage of minors
(1) No marriage officer shall solemnize a marriage between parties of whom one or both are have not attained the age of 21 years unless the consent to the party or parties which is legally required for the purpose of contracting the marriage has been granted and furnished to him in writing.
[The word “are” after the phrase “one or both” is superfluous.]
(2) Subsection (1) does not include a person who is under the age of twenty-one years and previously contracted a valid marriage which has been dissolved by death or divorce.
[section 24 substituted with amendment markings by Act 3 of 2015]
25. When consent of parents or guardian of minor cannot be obtained
(1) If a commissioner of child welfare as defined in section one of the Children’s Act, 1960 (Act No. 33 of 1960), is after proper inquiry satisfied that a minor who is resident in the district or area in respect of which he holds office has no parent or guardian or is for any good reason unable to obtain the consent of his parents or guardian to enter into a marriage such commissioner of child welfare may in his discretion grant written consent to such minor to marry a specified person, but such commissioner of child welfare shall not grant his consent if the minor is such a pupil or child as is mentioned in paragraph (a) of sub-section (1) of section fifty-nine of the said Act or if one or other parent of the minor whose consent is required by law or his guardian refuses to grant consent to the marriage.
[The Children’s Act 33 of 1960 has been replaced by the Child Care and Protection Act 3 of 2015. A “commissioner of child welfare” is now a “children’s commissioner”.]
(2) A commissioner of child welfare shall, before granting his consent to a marriage under sub-section (1), enquire whether it is in the interests of the minor in question that the parties to the proposed marriage should enter into an antenuptial contract, and if he is satisfied that such is the case he shall not grant his consent to the proposed marriage before such contract has been entered into, and shall assist the said minor in the execution of the said contract.
(3) A contract so entered into shall be deemed to have been entered into with the assistance of the parent or guardian of the said minor.
(4) If the parent, guardian or commissioner of child welfare in question refuses to consent to a marriage of a minor, such consent may on application be granted by a judge of the Supreme Court of South Africa: Provided that such a judge shall not grant such consent unless he is of the opinion that such refusal of consent by the parent, guardian or commissioner of child welfare is without adequate reason and contrary to the interests of such minor.
26. Prohibition of marriage of persons under certain ages
(1) No boy or girl under the age of 18 years shall be capable of contracting a valid marriage except with the written permission of the Minister or any staff member in the Public Service authorized thereto by the Minister, which he or she may grant in any particular case in which he or she considers such marriage desirable: Provided that such permission shall not relieve the parties to the proposed marriage from the obligation to comply with all other requirements prescribed by law: Provided further that such permission shall not be necessary if by reason of any such other requirement the consent of a judge or court having jurisdiction in the matter is necessary and has been granted.
[subsection (1) substituted by Act 51 of 1970, and amended by Act 5 of 1987 and by Act 1 of 1996]
(2) If any person referred to in subsection (1) who was not capable of contracting a valid marriage without the written permission of the Minister or any officer in the Government Service authorized thereto by the Minister, in terms of his Act or a prior law, contracted a marriage without such permission and the Minister or such officer, as the case may be, considers such marriage to be desirable and in the interests of the parties in question, it or he may, provided such marriage was in every other respect solemnized in accordance with the provisions of this Act, or, as the case may be, any prior law, and there was no other lawful impediment thereto, direct in writing that it shall for all purposes be a valid marriage.
[subsection (2) amended by Act 5 of 1987]
(3) If the Minister or any officer in the Government Service authorized thereto by the Minister so directs it shall be deemed that it or he granted written permission to such marriage prior to the solemnization thereof.
35. Penalties for solemnizing marriage contrary to the provisions of this Act
Any marriage officer who knowingly solemnizes a marriage in contravention of the provisions of this Act shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand or, in default of payment, to imprisonment for a period not exceeding six months.
36. Penalties for false representations or statements
Any person who makes for any of the purposes of this Act, any false representation or false statement knowing it to be false, shall be guilty of an offence and liable on conviction to the penalties prescribed by law for perjury.