FACULTY Faculty of Law

DEPARTMENT Public Law and Jurisprudence

SUBJECT Human Rights Law

SUBJECT CODE JHR 3761

DATE June 2021

DURATION 180 MINUTES MARKS 100

Regular Examination

Examiner: Mr. John B. Nakuta

Moderator: Dr. K. Kariseb

This question paper consists of eight (8) pages including the front page.
Instructions

This is an OPEN BOOK EXAM. You can therefore can bring any printed or
handwritten materials into the examination room.
Do not cite a case or a provision of the Namibian Constitution, an Act of
Parliament, any human rights instrument, or a case without further discussion!
There is no presumption that the use of a case name, article or section results
from knowledge of its content.
Discuss, analyse and apply any cases or legislative provisions for which you
wish to receive credit in your answer.
Your answers should demonstrate your knowledge and understanding of the
law to the facts. Answers without analysis will not receive credit.

EXAMINATIONS 2021

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 SECTION A

ALL of the questions in this section.

Question One

1.1. Choose the correct answer or answers:

The NBC wishes to come onto campus to film student protests at the Unam Main
Campus. However, campus security does not want to allow them to do so.
Consequently, they force the film crew to leave and state that they can only film the
protests from public spaces such as the roads running past campus.

Has the NBC’s human right to freedom of expression been violated?

(i) Yes. Juristic a person has the right to freedom of expression.

(ii) No. The NBC is not a human and, consequently, it is not entitled to human rights.

(iii) Yes. The NBC is an organ of state and organs of state are protected by human
rights.

(iv) No. Only the camera crew in their individual or collective capacity are protected
by human rights.

1.2. Choose the incorrect statement or statements:

In terms of article 10 of the Namibian Constitution the listed ground of sex

(i) Two gay men are being discriminated against.

(ii) Women are being treated unfairly because of social and cultural stereotypes.

(iii) Women are being treated unfairly because they may be away from the workplace
at inconvenient times when they take maternity leave.

(iv) A transgender person is dismissed from his/her job.

1.3 Choose the correct answer or answers:

The protection of human rights through international law is important as it:

(i) Accepts that every human has certain universal and fundamental rights which
transcend culture and religion and domestic legal systems.

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(ii) Ensures that action can be taken against states which are not protecting human
rights in domestic law.

(iii) Enables states to promote their autonomy and set their own human rights norms.

(iv) Means that military action can be taken against states not complying with human
rights norms.

1.4 Is the following statement True or False?

Takunda Moyo is a Zimbabwean soccer player who has a three-year contract to play for
Blue Water in Namibia. Local government elections are planned for 2020 (the final year
of his contract). He plans to register as a voter in preparation for the elections as he has
been very involved in community issues in his suburb. Takunda has the right to vote in a
Namibian election as he is a permanent resident.

1.5. Is the following statement True or False?

A horizontal application of the Namibian Bill of Rights occurs when the Bill of Rights
binds the state.

1.6. Is the following statement True or False?

Article 25 of the Namibian Constitution provides that following a finding of law or

1.7 Is the following statement True or False?

The Bill of Rights extends beyond Namibian’s borders protecting Namibian citizens
travelling or living abroad.

1.8. Is the following statement True or False?

Formal equality means to treat people differently to achieve an equal outcome

1.9 Is the following statement True or False?

A policy prohibiting prisoners from voting is a law of general application

1.10. Select the incorrect statement:

(i) The Namibian Constitution guarantees the right to basic health care services

(ii) Public interest standing was recognised in the NamRights case

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(iii) The directive principles of state policy in the Namibian Constitution are fully
justiciable.

(iv) Class action standing was recognised in the Tsumib case.

1.11. Select the correct answer:

The following are procedural issues in constitutional litigation:

(i) Justiciability and locus standi.

(ii) Application of the Bill of Rights, justiciability and remedies.

(iii) Jurisdiction, application of the Bill of Rights and justiciability.

(iv) Application of the Bill of Rights and justiciability.

1.12. Select the correct answer:

A direct application of the Bill of Rights occurs when:

(i) A court is asked to determine whether the ordinary rules of law (ie legislation,
common law and customary law) are consistent with the Bill of Rights;

(ii) A court is asked to determine whether the ordinary rules of law (ie legislation,
common law and customary law) can be developed so they become are
consistent with the Bill of Rights;

(iii) A court is asked to determine whether the state is bound by the Bill of Rights; or

(iv) A court is asked to determine whether the Bill of Rights applies horizontally

1.13. Select the correct statement(s):

The Namibian Bill of Right Chapter:

(i) Only contains civil and political rights;

(ii) Only contains economic, social, and cultural rights;

(iii) Contains a limited number of economic, social, and cultural rights; or

(iv) Can only be amended beneficially.

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1.14. Select the correct statement(s):

In our constitutional framework:

(i) A court will first interpret the scope of the right and established whether it has
been violated before inquiring as to whether a limitation of the right is justifiable;

(ii) A court will consider the scope and any possible limitation of the right together;

(iii) A right may only be limited by a law of general application; or

(iv) Any limitation on a right must be found to be justifiable in an open and

1.15 Select the correct statement(s):

The right to human dignity …

(i) Is not absolute.

(ii) Is absolute.

(iii) Serves a residual function

(iv) Is derogable.

1.16 Select the correct statement(s):

The waiver of a right …

(i) Is the same as alienability of rights.

(ii) Is the same as limitation of a right.

(iii) Is the same as a derogation of a right

(iv) Requires full and informed consent.

1.17 Identify the correct statement:

(i) The Universal Declaration of Human Rights (UDHR) was the first international
document describing fundamental human rights however it is not a binding
international convention.

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(ii) The UDHR was the first binding international convention on human rights.

(iii) The UDHR only deals with civil and political rights.

(iv) The UDHR was the first statement issued by the United Nations (UN) on human
rights

1.18 Select the correct statement(s):

When referring to the international bill of rights writers are referring to the following
documents:

(i) UDHR, the International Convention on Economic, Social and Cultural Rights
(ICESCR) and the International Convention on Civil and Political Rights (ICCPR).

(ii) UDHR, the ICESCRs and the Convention on the Rights of the Child (CRC).

(iii) UDHR, ICCPRs, and the CRC.

(iv) UDHR, the Convention on the Elimination of all forms of Discrimination against
Women (CEDAW) and the CRC.

[Total Q1: 25 marks]

SECTION B
Answer ALL of the questions in this section.

Question Two

This scenario is partially fictious.

Prudence, a 23 year old woman living with HIV, is pregnant with her fifth child. After her
labour pains start she goes to Edendale Hospital for the delivery of her child. Whilst
waiting in the queue to be admitted to the maternity section a nurse started to go
through her file and sees that Prudence is HIV positive with a CD 4 cell count of 350
and on ARV treatment. Prudence reports that the nurse said to her ‘etse, you have five
children and no husband’ and ‘a person with this disease is not allowed to have more
children, wakwetu....’. Followed by ‘you will die if you have more children’

After being admitted to the ward and now being in advanced labour and great pain
Prudence reports the same nurse ‘called me whilst holding my file. She then said, ‘Why
don’t you sterilise ousie?’ I answered, ‘Sister, I said no.’ She said, ‘Why not? You have
four children already. This is the fifth one. Why don’t you just sterilise, waketu?’ You
know that I don’t have time for this, I’m tired, you see that there’s no one to help me. I
won’t agree to keep giving a lecture every time you come with another baby. I’m tired of
HIV positive women wanting to have more children‟.

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Feeling distraught and pressurised Prudence agrees to the sterilisation as she is afraid
that the nurse will not help her with the delivery. This is a decision she later feels was
forced onto her.

Two years later she seeks advice from the Campus Law Clinic. They write to the
hospital advising them of her desire to challenge the lawfulness of its actions. The
Ministry of Health reply that its actions were lawful as. The letter state further that the
reason for its approach are:

(i) Sterilisation is a valid form of birth control which is allowed by law;

(ii) HIV impacts negatively on the health of HIV positive women and weakens their
immune systems, particularly when there are multiple pregnancies which are
close together;

(iii) Life expectancy is a valid reason to advise women to be sterilized and avoid
leaving their children orphaned; and

(iv) Prudence agreed to the sterilization.

[Source: Adapted from University of Kwazulu-Natal, 2016]

Based on this reply from the Ministry of Health, Prudence approaches you, as a
prominent member of the legal profession, for advice on:

2.1 Whether the Ministery’s actions infringe any of her constitutional rights? [5]

2.2 Whether the Namibian Bill of Rights would apply to this dispute and if so in what
way? [10]

2.3 Whether she has been discriminated against in terms of article 10.2 of the
Namibian Constitution? [10]

2.4 How, if at all, article 10.1 or article 144 can be invoked to support her claim in
the event the claim based on article 10.2 fails? [12]

2.5 Whether she can challenge the ministry’s conduct on behalf of all women that
were forcibly sterilised? [10]

2.6 The remedies she could request the court to impose if she were to be successful
in challenging the ministry’s conduct in court. [2]

[Total Q2: 50 marks]

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 SECTION C

Answer any ONE question in this section.

Question Three

With reference to the legislative framework and decided cases critically discuss the
extent to which the rights of people living with HIV or AIDS (PLWHA) are protected in
our law. [25]

Or

Question Four

Write a note in which you explain how the court applied article 26 of the Constitution,
the derogation clause, in the Namibian Employers’ Federation v President of the
Republic of Namibia (HC-MD-CIV-MOT-GEN-2020/00136) [2020] NAHCMD 248 (23
June 2020) [25]

The END.