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misconceived in that the treatment exacted on the victims was also exacted on others in the same situation as the victim or that the circumstances of the victims are relevantly different from those of the comparator. Secondly, the Respondent State may admit the differential treatment was objectively and reasonably justifiable. 125 191. The Commission concluded in that Communication that no discrimination had occurred because the Complainant had not identified a male comparator to demonstrate that she had been treated differently from In an unjustifiable manner. 126 192. From these landmark decisions, it can be aiscerned that the test applied by the Commission to determine whether discrimination against women has occurred is to enquire whether: (a)There were similarly situated men; (b) the women received differential treatment from the similarly situated men; and (c) that differential treatment was objectively and reasonably justi~able. 193. Turning to the present case, the Commission has already found in its decisions on the first allegation that the· Respondent State failed to investigate, prosecute and punish the victim's case. The Commission has to consider if this failure to act with due diligence amounts to discrimination. Before that, it is concomitant for the Commission to make a determination on the prickly matter of the legal test for discrimination. 194. The Complainants righti.Y point out that the traditional legal test for discrimination which relies on the use of a Male Comparator to establish discrimination is 'premised on the concept of formal equality. Loosely speaking, formal equality requires similarly situated parties to be treated similarly. It has often been colloquially referred to as "equality as sameness". The Commission has previously pointed this out in Sudanese Civ' · ~~~~ ordofan and Blue Nile (represented Sudan Democracy F SS, Human Rights Watch, INTERIGHTS and Enough Pr stated that "The Commission's interpretation of Articles on formal equality between the sexes, as opposed substantive 127 transformative equality. " 125 Equality Now (2015) para 148 126 Equality Now (2015) para 149-150 127 Communication 402/11 & 412/12 (2023) para 220 49

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

ACHPR Decision

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Type of Document

Decision

Keywords

Arbitrary Arrest and Detention
Cruel and Degrading Treatment
Due Diligence
Equality
Equality Before the Law
Freedom from Discrimination
Investigation
Maputo Protocol
Personal Liberty
Personal security
Protection of Family and Vulnerable Groups
Rape
Sexual and Gender Based Violence
Sexual Offences
Slavery and Human Trafficking
Torture and Ill Treatment
Women in prison
Women's Rights

Case Head Notes: The Complainants state that, in May 2017, the Victim, a Kenyan citizen, was searching for, and applying to, job opportunities. The Victim received an email stating that she had been shortlisted for a position in Namibia, and about one week later the Victim received a phone call informing her that she would be contacted by a local agent in Nairobi to facilitate her travel plans. Upon meeting the agent, the Victim was told that she needed to travel the same day, by road, from Nairobi to Namibia. The agent booked, and paid for, a bus ticket for the Victim. While passing through Tanzania and Zambia the Victim remained in control of her passport, however, at the Namibian border, the bus driver asked for her passport and processed her entry into Namibia, while the Victim remained on the bus. Upon entering Namibia, the Victim was handed over, by the bus driver, to two men who demanded that the Victim hand over her travel documents and mobile phone to them. She was escorted to a red vehicle, and, upon arriving in Windhoek, Namibia, she was taken to a guesthouse with other young women. One day, one of the men in charge of the guesthouse, summouned the Victim, together with other young women and brought them to another room of the house where eight men were waiting. Each man chose a women they wanted to have sexual intercourse with. The man who chose to be with the Victim raped her repeatedly. In the ensuing three month period the Victim was sexually exploited and raped by approximately 200 men. The Victim was subjected to burns, forced to physically fight other women, and was forcibly injected and drugged with unknown substances that would cause the Victim to lose consciousness for hours or even days. In August 2017, the Victim became pregnant and was forced to terminate the pregnancy. The Victim escaped from her captors in October 2017 and went to the nearest police station. After informing the police that she was a victim of trafficking for sexual exploitation the police interrogated her, threatened her with criminal sanctions and physically assaulted her for mentioning the names of police officers who were involved in her abuse. The police refused to take the Victim to the Kenya High Commission, and she was subsequently transferred to a detention centre for illegal immigrants, and then to a shelter for abused women. After having her request to be taken to the High Commission refused again, she ran away from the shelter to find the High Commission, however, when she arrived, the offices were closed and the security told her to report the matter to the city police. After returning to the police station the Victim was detained as an illegal immigrant. Until her departure from the country, the Victim remained in custody without an explanation on the reasons for her detention. During this time she was in urgent need of medical care, but she did not receive any. After being unlawfully detained for four weeks the Victim wrote to One Africa TV, and a journalist from One Africa TV notified the Legal Assitance Centre (LAC) about the Victim's predicament. The LAC facilitated the process of obtaining an air ticket for the Victim to return to Kenya so that she would be released from detention. The Victim left Namibia in November 2017. She was only able to access medical assistance upon her arrival at the offices of KELIN in Kenya, when a wide range of medical issues were discovered, including: psychological trauma from her captivity, and wounds from the abuse and the forced abortion she was subjected to. The Commission found a violation of Articles 2 and 18(3) of the Charter and Article 2 of the Maputo Protocol. As part of the analysis the Commission discussed the problems associated with the requirement to use the "comparator" method to establish a finding of discrimination. First the Commission noted, through various examples, that women and men are different, and that being treated alike does not guarantee women equality. Specificallly, the Commission noted that there may be situations where there is no comparator situation available to establish discrimination (for example, women alleging differential treatment at a workplace related to a pregnancy), and additionally that the "comparator" method does not adequately take into account the potential for intersectional discrimination, where a woman may be discriminated against for a combination of reasons (for example the combination of her gender, her nationality, and her age). The Commission stated that they were persuaded that the Comparator Test imposed a male standard to situations where it should not exist, and that the male comparator approach does not allow for an effective analysis of equality, and non-discrimination, when rights violations arise from female-specific circumstances. The Commission stated that the present Communication presented a unique opportunity to adopt a substantive equality approach to discrimination because, on account of the intersectionality of the Victims's identity, it is one of those cases in which there is no comparator. The Commission stated that, in the present case, in order to apply the comparator test, the Commission would have to find a young man of Kenyan nationality who was trafficked to Namibia for sexual exploitation; the Commission stated that this would be imprudent, if not impossible. Persuaded that a substantive equality analysis was required in the present case, the Commission found a clear violation of the right to be free from discrimination because, considering the Victim's circumstances, positionality, background and systematic disadvantage of being a woman, the Commission found the Victim's experience of violence to be inherently discriminatory. The Commission further noted that violence against women happens to women simply because they are women, and that is discriminatory. In the Victim's case they additionally note that the violence against the Victim occurred because she was a woman of particular disadvantage, and that she was targeted because of her vulnerability. Accordingly the Commission found that the Victim experienced multiple discrimination based on her sex, age, gender and nationality. The Commission also quoted from General Recommendation 35 of the CEDAW that "gender-based violence against women is one of the fundamental social, political and economic means by which the subordinate position of women... are perpetuated... such violence is a critical obstacle to the achievement of substantive equality between women and men... and to the enjoyment by women of their human rights and fundamental freedoms." Having already found that the Respondent State's failed to investigate, prevent, and punish the Victim's trafficking, the Commission stated that it follows that the Respondent State is liable for the discrimination suffered by the Victim.The Commission found a violation of Article 5 of the Charter and Article 4(2)(g) of the Maputo Protocol because the attacks that the Victim was subjected to amounted to cruel, inhuman, and degrading treatment, and the Respondent State failed to effectively investigate the trafficking of the victim, or the continued abuse of the Victim. The Commission proceeded to go, in detail through a number of standards of an effective investigation which were not met. First, they noted that there was an unjustifiable delay in the conduct of the investigation. The Commission noted that there was a four day delay between the date that the Victim was taken into custody, and the date that the Victim's statement was taken and, further, that there was a period of 15 days that elapsed between the date the Victim was taken into custody and the date that INTERPOL in Nairobi was informed that a Kenyan citizen had contacted the police in Namibia. The Commission emphasized that victims of torture and other ill-treatment should access and obtain redress promptly. Regading the effectiveness of the investigation the Commission stated that the police failed to look into many important details, (for example, neglecting to summon the alleged perpetrators to the police station to give a statement, neglecting to track the cars the Victim had identified, and neglecting to investigate the companies that had recruited the Victim), handed over evidence to one of the perpetrators, and allowed a suspect to control the narrative of the investigation. Regarding bias against the Victim, the Commission noted that, upon reporting that she was a victim of trafficking, the police threatened the Victim with criminal sanctions, accused her of lying and detained her. The Commission also shared concerns that the police had profiled the Victim because the police had noted that the Victim was wearing a sleeveless top, and did not having any scars or injury marks; the Commission stated that this observation tainted the investigation because it served to confirm the police's belief that the victim was falsifying her allegations. The Commission further stated that, in general, the police conduct was representative of a denial of victim status to the Victim. The Commission also further noted that the detention of the Victim violated her Article 5 rights, as it was unjustifiable, denied her victim status, and converted her into a perpetrator. The Commission emphasized this determination by citing their own caselaw, that victims should have ownership of the redress process, and that relevant actors are supposed to work with the victims, not on the victims, and also by citing the UN Guidelines on Human Rights and Trafficking, which states that trafficked persons shall not be detained. Regarding access to consular service, the Commission stated that preventing the Victim from accessing her home country falls short of the due dilligence obligations of the Respondent State. The Commission cited Article 36(1)(a) of the VCCR which requires receiving states to allow arrested nationals to gain access to their consuls, and also cited the Istanbul Protocol, which states that States must ensure the right of foreign nationals to complain to diplomatic and consular representatives. Regarding the completion of the investigation, the Commission stated that the investigation was not allocated sufficient time and it was prematurely terminated. Regarding non-prosecution, the Commission noted that a copy of the case file was submitted to a Prosecutor in November 2017, but there is no evidence that the Respondent State pursued charges at the time. The Commission stated that, by omitting to prosecute, the Respondent State further neglected its due dilligence obligation. Overall, the Commission concluded that the Respondent State not only failed to conduct an effective investigation, and prosecute and punish the Victim's perpetrators, but also, through its agents, it participated in conduct that added to the Victim's unfortunate ordeals. The Commission decided that the Respondent State should expeditiously investigate, prosecute and punish the Victim's perpetrators, that the Respondent State's courts of law hear arguments on and decide on the amount of financial compensation to be awarded to the Victim, that the Respondent State adopt legislative and other measures to address the problem of trafficking in persons for sexual exploitation in its territory, that the Respondent State abide by its obligations to adopt legislative and other means to protect women from gender-based violence, and that the Respondent State report on the measures it has taken to implement the decision.

Country

Namibia

Outcome: Decided on Merits

Year Decided: Mar 8, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Violated (ACHPR Provisions)

ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 18.3: Protection of Rights of Women and Children
ACHPR 2: Freedom from Discrimination
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Procedure

Apr 28, 2019 ~ Mar 8, 2024

Country Geolocation

Latitude: -22.95764

Longitude: 18.49041

Country Geolocation (linked ACHPR Decision): Namibia

Primary Documents

J (Represented by ISLA & KELIN) v Namibia.pdf
English
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African Human Rights CLA 2.0

Select target paragraph3

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

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