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are different and that being treated alike does not guarantee equality. Substantive equality, as opposed to formal equality is concerned with acknowledging gender differences rather than focusing on similar treatment of all genders. The emphasis for substantive equality is recognising and redressing disadvantage which may result from difference, and accommodating such difference to achieve structural change. A substantive approach to equality delves into the individual's context in order to eliminate barriers that impinge on full realisation of equality." 132 198. The Complainants' indictment against the comparator test for discrimination is that it underscores the limited.formal equality interpretation of Article 2 and 18(3) of the Charter. Their indictment finds merit in the analysis above on the limitations of formal equality. Moreover, it is not a novel appeal, it is one spread across jurisdictions both domestic and international from academia, civil society and most notably the different facets and faces of the women's movement. 133 The Commission 'also notes that the comparator test has been the subject of widespread criticism as Goldberg has noted: ContemporanJ discrimination law is in crisis, both methodologically and conceptually. The crisis arises in large part from the judician/s dependence on comparators - those who are like a discrimination claimant but for the protected characteristic- as a favored heuristic for observing discrimination. The profound mismatch of the comparator methodologtj with current understandings of identity discrimination has nearly depleted discrimination jurisprudence and theory ... Even in run-of-the-mill cases, comparators often cannot be found, particularly in today's mobile, knowledge-based economy. This difficulty is amplified for complex claims; which rest on thicker understandings of discrimination developed in second-generation intersectionalihJ, identity performance, and structural diserim ·nation theories. By treating comparators as an essential element of discrimin:ation, instead of as a heuristic device to help discern whether discrimination has occurred, courts have largely foreclosed these other theories from consideraf-i(!n ... The comparator methodology retains its appeal, despite these deficiencies, because its empirical patina permits cour, s·toeiia t discrimination claims without appearing to engage in a subjective-«n.Jzysi's'; voil<p ce dynamics. Given the complex nature of both identity a;trfl. di fuminat · n, 0"'6 vever, the comparisons produce a false certainhJ at best ... 0'it comva1111.to ( dged from 0 ~.;0 ~~,. .. 132 Chekera-Radu (2017) page 50 ~ ·s:i,~o. ('..,. 11-1,-,,1 Goldberg, S.B (2011) "Dicrimination by Comparison" Yale Law Jou "' ol:11 1 ht tps://www .ya le lawjo urna l.or g/ar ti le/discrimina tion-by- ompari on ); Cheker~ a-R"a:tlu:i~l'f 133 51 (l' " ~ o. 4 690-977 (

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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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