Our case starts – with argument over the Public Service Act

The forced sterilisation cases, in which the LAC is representing several women suing the Government of Namibia for damages, commenced in the High Court of Namibia on Thursday 26 November 2009.

The Government raised a legal point that the Public Service Act of 1995 applies to the litigation. The Pubic Service Act requires that any person wishing to institute legal action against the Government, must do so within 12 months of the action arising, and only after written notice of one month has been given to the Government.

It is our clients’ contention that the Public Service Act does not apply as that law only regulates the employment affairs of the public servants, and not to delictual or contractual disputes of non-public servants against the Government. As a result, no such notice was given, and in some of the cases, the legal action was only instituted after 12 months after the sterilisation was conducted.

If the Act applies, then we will argue that the provisions of the Public Service Act are unconstitutional as it violates our clients’ rights to a fair trial and to equality.

The resolution on the question of the applicability or otherwise of the Public Service Act is very important, not only for these pending cases, but for all court actions against the Government as most, if not all, cases which are not labour matters (civil servants suing the Government for labour disputes), would not have complied with the provisions of the Public Service Act, and the Public Service Act severely limits an ordinary person’s right to approach a Court to the extent it is a violation of the constitutional right to a fair trial. Accordingly, these provisions should not survive in a constitutional democracy.

After the Court has dealt with these arguments and delivered judgment, we will proceed to present the cases on the evidence on whether or not our clients were sterilised without consent, and that they were discriminated on the basis of their health status and because they are women. The women are each suing the Government for more than N$1 million in damages.

Please, take note that the clients have obtained an order from the High Court that their identities should not be revealed as their fear further discrimination and stigmatisation because of their HIV status.

NORMAN TJOMBE
DIRECTOR
LEGAL ASSISTANCE CENTRE

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