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Legal Matters - Feb/Mar 2021

Juveniles to get separate holding cells

Juveniles to get separate holding cells

The Ombudsman, while investigating the detention of a 13-year-old boy at the Rehoboth Police Station in October 2020, noted that there are currently no places of safety or children’s detention facilities in Namibia.

This is in conflict with the law. The Child Care and Protection Act (CCPA) prescribes that children awaiting trial or sentence must be held at places of safety or child detention centres. The Act furthermore prohibits the detainment of children awaiting trial or sentence in any place other than a place of safety or child detention centre. It also implies that police holding cells are excluded from this definition. The Ministry of Child Welfare is responsible for approving, establishing and operating such places of safety and child detention centres in Namibia.

This lack of facilities for young criminals (meaning a person not older than eighteen) means that children who are denied bail and await pre-trial screening, trial, or sentencing, will undoubtedly be detained for indefinite periods of time in police holding cells together with adult criminals.

Obviously, it is not in the best interests of children that they be held with adults in police holding cells.

Namibian laws do not support the outdated system of justice that generally treated child offenders as smaller versions of adult offenders and in so doing deny children access to a child-friendly justice system.

A court order, circulated to the relevant stakeholders following the October hearing, not only orders the immediate separation of children from adult offenders where possible, but also imposes a measure of judicial supervision on the Minister of Child Welfare as she carries out her duties in terms of Chapter 5 of the CCPA.

The Ombudsman had approached Dr Weder, Kauta & Hoveka Inc for assistance, and an urgent application was launched in the High Court to achieve two things, firstly to have the children currently detained, released. Secondly to compel the Minister to establish, identify, approve and operate where appropriate the places of safety and/or child detention centres that the Ministry is statutorily obligated to do.

According to the court order, where possible children detained at the police holding cells must be separated from detained adults, pending the enquiries in terms of Section 69 of the Correctional Services Act and Section 69 of the CCPA.

Furthermore, the Minister of Child Welfare is obligated to, without delay, provide to the Ombudsman and the High Court, a plan and programme detailing implementation so as to ensure that Chapter 5 of the CCPA is implemented. Chapter 5 of the CCPA requires the Minister to establish, identify, approve and operate where appropriate the places of safety and/or child detention centres in Namibia.

Tshuka Luvindao (Represented the Ombudsman in this matter together with Adv Tuhafeni Muhongo).



Tshuka Luvindao
Senior Associate





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