Readers will already be aware that support services for victims of GBV are overstretched and, in many remote areas, are inaccessible. Articles in previous editions have already made the convincing case to increase both the accountability and spending for GBV across all government ministries. However, it is not only in victim support where geographical variations exist. Victims of GBV may go through contrasting experiences for several reasons, such as: the distance from their homes to a police station / court; the way GBV is approached in their local community / culture and; whether they report the crime to the Criminal Justice System (CJS) or Traditional Justice System (TJS), if indeed they do report it.
The variation in outcomes that victims of gendered and sexual violence may experience due to the above reasons are complex and need to be understood. This requires engaging with actors in both justice systems throughout Namibia, not just the CJS. To demonstrate some of the cultural differences in realising victims' rights after GBV has been perpetrated, this article focuses on how rape is addressed in Traditional Courts. This selection does not suggest that there are no issues of inequality to address in the CJS. However, it does acknowledge that CJS issues, such as problems with implementing Protection Orders, are likely to be more widely known, because of the publicity this has received. The TJS has been prioritised here in recognition of the fact that it is the justice system of choice in many rural communities.
The Legal Assistance Centre (LAC) and other legal experts are clear that rape cases must be heard in the CJS. This based on Article 66 of the Constitution that states that the application of customary law may not conflict with statutory law. The Combatting of Rape Act 2000 sets a minimum sentence of 5 years imprisonment for rape a sentence which a Traditional Court could not implement. So, whilst a complainant is entitled to seek compensation in a Traditional Court, this should not replace state justice proceedings.
From 2010 - 2016, most Traditional Authorities had their customary laws ascertained, meaning they are now documented. This is very helpful as it enables GBV activists to examine customary law processes with GBV...
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