test is one of means and not outcome45 and one that considers the resources of the
State to be taken into account. 46 The Respondent State further submits that when
assessing compliance with due diligence, the Commission ought to give
consideration to "the difficulties involved in policing modern societies" 47 and that
"the existence of a violation does not in itself prove the failure to take preventative
measures" .48
120.
The Respondent States further contend that they complied with Article 1 of
the Charter because they promulgated the following Legislative measures:
121.
The Combating of Immoral Practices Act, 1980 (Act No 21 of 1980);
Domestic Violence Act, 2003 (4 of 200-3); Prevention of Organized Crime Act, 2004
(Act No. 29 of 2004); Affirmative Action (Employment) Act, 1998 (Act 4 of 1998);
Labour Act, 2007 (Act 11 of 2007); Married Persons Equality Act, 1996 (Act 1 of
1996); Abortion and sterilization Act, 1975 (Act 2 of 1975); Combating of Rape Act,
2000 (Act 8 of 2000); Social Security Act, 1994 (34 of 1994); Criminal Procedure
Amendment Act, 1977 (Act 51 of 1977); Police Act, 1990 (Act 19 of 1990);
International Co-operation in Criminal Matters Act, 2000 (Act 9 of 2000) and
Combating of Trafficking in Persons Act, 2018 (Act No. 1 of 2018).
122.
Regarding allegati.o ns of violations ofArticle 5 of the Charter and Article
4(2)(g) of the Maputo Protocol, the Respondent State submits that they have
promulgated laws and various educational and awareness campaigns on T.I.P,
however the contraventions of these laws are inevitable. It is further contended
that since the Respondent State had no knowledge of the sexual violence and
bodily harm meted upon the complainant, those violations cannot be attributed to
them. The Respondent State argues that after learning of the allegations of
violations, they immediately instituted an investigation and also filed a highpriority request with INTERPOL Kenya. It is further averred by the Respondent
State that at all times, the Complainant was given timeous, reasonable and
proportionate assistance using the National Standard Op~ .. ·g ,,
edures for
the Multi-Disciplinary Management of Gender-Basedl'.Violenc:e ,.~
iolence
against Children in Namibia.
"
'
f'
\
-,:
The Respondent State further submit that the
Friendly Haven Shelter, where, they argued, she
123.
45 Hadijatou Mani Koraou v The Republic of Niger 2008
46 Dorothy
jemanze and 3 others v Federal Republic of Nigeria case 201 7
4 7 Osman v United Kingdom ECHR 1998
48 Velasquez Rodrigues v Honduras IACHR 1988
26
the
olice