International Convention on Elimination of All Forms of Racial



International Convention on Elimination of All Forms of Racial DiscriminationAlternative Report Submission on NamibiaPrepared forthe 89th Session of CERD25 April – 13 May, 2016Submitted by:International Human Rights Advocacy GroupWilliam S. Richardson School of LawUniversity of Hawai`i at MānoaAndrea Blackstone, JD Candidate 2017 andreajb@hawaii.eduJennifer Brown, JD Candidate 2017 jlbrown8@hawaii.eduKamakani MacDonald-Chun, JD Candidate 2017 kkmc@hawaii.eduAdvisor:Tae-Ung Baik, Associate Professor of lawWilliam S. Richardson School of Law, University of Hawaii2515 Dole Street, Room. 245 Honolulu, HI 96822, USA(808) 956-7838; tubaik@hawaii.eduInternational Human Rights Advocacy GroupWilliam S. Richardson School of LawUniversity of Hawai`i at MānoaAlternative Report on Namibia Submitted to the International Convention on the Elimination of All Forms of Racial Discrimination89th Session 25 April to 13 May 2016Reporting OrganizationThe International Human Rights Advocacy Group (IHRAG) is an international human rights organization consisting of law students at the William S. Richardson School of Law at University of Hawai`i at Mānoa. IHRAG is committed to investigating and reporting human rights abuses around the world. The named member students of IHRAG hereby submit this Alternative Report for consideration of the 89th Session of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) for the purposes of protecting the human rights of the people of Namibia. Our investigation has found that the indigenous minority groups in Namibia still struggle to access their rights to equal education. Specifically, the Himba minority group continues to lack access to education and those Himba that do have access are further discriminated against by education policies that force the Himba to abandon their cultural and traditional dress in favor of Western style uniforms and hairstyles.Background of the Indigenous Minority Group – HimbaThe Himba are a group of indigenous people who reside in the mountainous region of northwestern Namibia. The Himba population refers to their lands as Kaokoland, while others call the region Kunene. There is an estimated 25,000 Himba residing in the Kunene region, although this number varies between different reports and some sources estimate the population to be as high as 50,000. Although the contact between the Himba people at western influences have increased in recent history, the Himba still hold on to their heritage and are known for their strong cultural identity and continued practice of their semi-nomadic way of life. The Himba economy is centralized around their traditional semi-nomadic practices of herding cattle, sheep, and goat, supplemented with agricultural and gathering practices. Traditionally, children were taught the ways of their ancestors and were integrated into the economic system by continuing the semi-nomadic ways of their families. In addition to their nomadic lifestyle, the Himba have strong cultural practices exhibited through their clothing and hairstyles. For the Himba, age in a numerical sense is not as focused on as in other cultures. Instead Himba individuals display what stage of life they are in based on how they wear their hair and what ornaments decorate their hair. For example, a woman will start with a shaved head as a toddler, then have two braids as a girl, after puberty she will have many braids textured with otijze (a mixture of butterfat and ochre), and finally wear an Erembe (a headpiece made from animal skin) upon marriage. Himba traditionally wear loincloths or skirts made from animal hides and cover their skin with the otijze paste, used to protect them from the harsh climate and cleanse the skin.Legal FrameworkThe International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)Namibia ratified ICERD on 11 Nov 1982. Article 1 of ICERD prohibits all “racial discrimination” that impairs the “recognition, enjoyment or exercise, on an equal footing, of … fundamental freedoms in …social, cultural or…public life.” In addition to the prohibition of discrimination, ICERD seeks to eliminate disparate impact by resolving to “promot[e] understanding between all races.” Therefore, the Namibian Government is obligated to address the issue of a lack of cultural awareness and sensitivity in accordance with ICERD. The acquiescence of western clothing and ideals is leading to increased cultural disparity and eventually a possible elimination of the Himba way of life. Educational institutions are prohibited from promoting or inciting Western traditions and a lack of acceptance of the Himba’s traditional cultural values. Article 5, in compliance with Article 2, guarantees the right of the Himba to “the right to education and training.” The Himba also have “the right to freedom of opinion and expression” of their cultural traditions. The Himba traditional dress and hairstyles are a fundamental and traditional element of the culture, heritage, and race of the Himba people. Therefore, it is unlawful for schools to deny access to education through the establishment of any policy that requires their students to abandon their traditions. The International Covenant of Civil and Political Rights (ICCPR)Article 26 of the ICCPR further elaborates on these rights that persons belonging to ethnic minorities “shall not be denied the right, in community with other members of their group, to enjoy their own culture.” The ICCPR was ratified by Namibia on 28 November 1994, and stands as strong persuasive legal authority.Schools cannot be allowed to continue to force Himba children to choose between their family’s heritage and their educational future. Currently, acquiescence of western clothing and ideals is leading to increased cultural disparity and eventually a possible extinction of Himba way of life. The family is protected by society and the State under domestic laws of the Namibian Constitution and Article 23 of the ICCPR. Protection of the family unit includes protection of the families values and heritage for which the State is to maintain respect for the liberty of the parents to “ensure the religious and moral education of their children in conformity with their own convictions.” Society and the State must support an educational system that leaves young adults with the ability to return to their families and to utilize the skills that they have learned to create prosperity without the extinction of a culture. An educational system, which requires western cultural assimilation, leads to diminished respect for generations of Himba parents, elders and ancestors and is the nexus of the lack of concern and “contribution toward the health and well-being of the tribe, village, or community.” Studies have shown that western influence is not only casting out Himba cultural traditions but also deeming them to be seriously wrong. This degradation of the Himba culture through western education is constitutionally unjustifiable under Article 19 in which “every person shall be entitled to enjoy, practice, profess, maintain, and promote any culture…tradition” so long as it does not interfere with the national interest. It is in the best interest of the nation to retain respect for, promote, and protect a nations ancestors and cultural heritage. The Constitution of the Republic of NamibiaThe Namibian Constitution is specifically “aimed at the advancement of persons who have been socially, economically or educationally disadvantaged by discriminatory laws or practices which have been enacted or practiced before the independence of Namibia.” Article 10, section 2 of the Constitution states that “No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.” This in conjunction with the “right to education”, provided under Article 20, helps to ensure the advancement of the Himba. Racial Discrimination Prohibition Act No. 26 of 1991In accordance with the Racial Discrimination Prohibition Act 26 of 1991 it is unlawful racial discrimination to require Himba children to wear Western style uniforms to school against their cultural heritage. Any school may be held criminally punishable under Article 23 of the Namibia Constitution if found to commit: “[P]ractices of racial discrimination…in relation to public amenities, the provision of goods and services, …educational and medical institutions”.Himba children represent a protected class of persons as a “racial group” defined “by reference to colour, race, nationality or ethnic or national origin” in Section 1 of the Act. The Himba traditional attire is a fundamental and traditional element of the culture, heritage, and race of the Himba people and it is unlawful for the school to establish any policy that requires their students to abandon their traditions. It is unlawful for the any person in management or employed at, an educational institution to permit admission on less favorable terms or conditions than those permitted to another student at admission. It is clear and convincing evidence that a student who is required to give up and deny their cultural heritage based upon their racial ethnicity is being admitted to the school if devastatingly “less favorable terms or conditions” than another student who did not. As defined in Article 5.2 an “educational institution” includes “any...establishment where vocational or technical training or instruction is provided.” Accordingly, the provisions of this Act apply to formal school as well as mobile school units or temporary locations for education.Summary of Human Rights Violations Against the Himba Limited Access to EducationThe National Policy Options for Educationally Marginalised Children of 2000 identifies Himba children as being “educationally marginalized,” which mean they face many difficulties in accessing basic education that children of other populations do not. Due to the Himba’s nomadic lifestyle, access to schools is even more difficult and problematic.Taking the nomadic practices of the Himba into consideration the government of Namibia, in partnership with Namibia Association of Norway, created mobile school units. These mobile schools would travel with the Himba as they moved from place to place. The Himba were originally very pleased with the program, but since the Government of Namibia has gained full responsibility for the program, the schools and materials are no longer properly maintained. The Himba leaders have found that the mobile schools are either closed, or no longer able to traverse the region with the tribe. Inequality in Education“In 1990, the Government of Namibia inherited a national educational system defined by apartheid policies, under which generations of black indigenous Namibians received an education far inferior to that of the white minority.” While the government has made numerous efforts and implemented programs to address the discriminatory education policies of the past, there is still a large disparity in the education received by different populations of Namibia. English is the medium of instruction in Namibian schools, with native language instruction only available through the 3rd grade. Due to this policy, minorities such as the Himba whose native language is not English are prevented from gaining equal education. When the Himba are not taught in their native language, their ability to learn, understand, and participate in school is greatly hindered or prevented altogether. Due to these English language policies, the dropout rate of Himba and other minorities dramatically increases after the 3rd grade. Discrimination in Education “[P]overty and malnutrition have not been the predominant causes for poor school attendance of Ovahimba children[, r]ather the resistance to modern forms of education that do not specifically respect the culture and traditions of the Ovahimba have for a long time been a factor for keeping children at home.” In a declaration from 2012, the traditional leaders of Kaokaland in Namibia expressed their frustration about the lack of culturally appropriate schools for their children, stating “worst of all, our children are forced to remove their traditional haircuts and attires, their entire cultural identity, and must cut their hair and dress in the western school uniforms if they want to be allowed to attend governmental schools.” The traditional leaders explain that many of the Himba children do not want to wear the western attire and the community fears it may lead to a loss of culture and traditions. If they want to attend government schools, the Himba are forced to purchase these school uniforms and the fact that many cannot afford the uniforms is creating additional stress within the community. The result of these restrictions has caused many Himba to not attend school. For Himba who comply with school regulations still face discrimination and ridicule from peers and teachers because of their culture. The result of the insensitivity and discrimination by the schools to Himba culture has lead to high dropout rate for those Himba that attempt to attend school, so many do not even finish primary school.Our FindingsThe right to education is guaranteed under Article 5(e)(v) of ICERD. Equal education is required under the Namibian Constitution and the Racial Discrimination Act 26 of 1991.Without access to equal education, the minority groups of Namibia such as the Himba become more socially and economically vulnerable. The Himba are in danger of becoming permanently marginalized and discriminated against without access to the same education and opportunities given to other ethnic groups in Namibia. Denying the Himba equal education as required under the Namibia Constitution and the Racial Discrimination Act 26 of 1991, keeps the Himba community in a lower socioeconomic class and denies them protection and a defense against others who wish to take advantage. Preventing the Himba from an adequate education keeps them marginalized and unable to advance equally with the rest of the Namibian population.It is unlawful under the Racial Discrimination Act 26 of 1991 and unconstitutional under the Namibia Constitution to require Himba children to dress in Western uniforms. The child’s right to enjoy their own culture and the parent’s right to protect the culture of their family are protected by the ICCPR. For Himba who attend mobile schools or Western schools, continued inequality and discrimination in these schools prevents the Himba from gaining a quality and equal education. Even when Himba have access to schools, discrimination and lack of cultural respect cause many Himba to drop out of school. Western schools discriminate against the Himba by disrespecting their culture and way of life by requiring them to abandon their traditions for Western uniforms and hairstyles. Those Himba who adhere to the school uniform policies still face discrimination from classmates and teachers who ridicule their lifestyle and traditions. Recommendations IHRAG urges the Namibian Government to “undertake and pursue by all means and without delay a policy of eliminating racial discrimination to support the ability of minority groups, like the Himba, to have equal access to education as required under ICERD, the Namibian Constitution, and the Racial Discrimination Act 26 of 1991. IHRAG asserts that Namibian Government should encourage Himba traditional authorities (TAs) to send their children to mobile schools, allowing them to remain within the community while in school. Namibian Government should continue to fund mobile school units and prevent them from becoming “immobile”. Quality of the mobile school units must be equal to Western style schools and Namibia should not allow the mobile school units or their materials to depreciate.IHRAG encourages the Namibian Government to implement policies to notify the Himba of their rights to free education and programs that can help provide them with financial aid for school food, supplies, and uniforms. The Himba should be made aware of all scholarship and financial programs that will allow their children to go to Western style boarding schools if they desire.IHRAG recommends, in accordance with ICERD, that the Namibian Government “encourage…integrationist multiracial…movements…eliminating barriers between races” by ratifying their current educational policies requiring that the Himba adopt Western uniforms and hairstyles in order to attend schools. Requiring the Himba to abandon their strong cultural practices and traditions forces them to choose between school and heritage. IHRAG encourages Namibia to allow the Himba to represent their race and culture through their traditional dress and hairstyles.IHRAG recommends, in accordance with ICERD, that the Namibian Government “promot[e] understanding among all races” by incorporating a school curriculum that teaches cultural sensitivity and nondiscriminatory practices of marginalized and minority groups like the Himba. Educating students to respect other races and cultural practices will keep minorities like the Himba from feeling ostracized at school and prevent early dropout rates. Furthermore, IHRAG recommends that the Namibian Government consider ratifying their English language policy in schools by allowing minority groups, like the Himba, to take classes beyond 3rd grade in their first language. Allowing the Himba to gradually increase their education from their native language to English will help “to ensure the adequate development and protection of” the Himba by decreasing their dropout rate. ................
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