v. Namibia

March – 5 April 2002

By submission of 5 June 2000, the State party made its observations on the admissibility of the communication and by submission of 17 October 2000, it made its observations on the admissibility and the merits.

With regard to Mr. Müller, the State party confirms that he has exhausted domestic remedies in that his claim was brought to the High Court of Namibia and appealed to the Supreme Court of Namibia. However, the State party points out that the author brought his claim directly to the courts, without complying with the terms of the Aliens Act. The State party further contends that the Committee has neither the power nor the authority to consider the author’s claim of a specific remedy as in paragraph 3.5 (d) above, since the author in the national proceedings did not claim that the Supreme Court was incompetent to award costs, nor did he contend that Namibian laws on the award of costs by the national courts violated the Namibian Constitution or Namibia’s obligations under the Covenant.

With regards to the author’s claim of a violation of article 26 of the Covenant, the State party submits that it does not dispute that Aliens Act Section 9, paragraph 1, differentiates between men and women. However, it is submitted that the differentiation is reasonably justified by its object to fulfil important social, economic and legal functions. Surnames are used to ascertain an individual’s identity for such purposes as social security, insurance, licenses, marriage, inheritance, voting, and being voted for, passports, tax, and public records, and constitutes therefore an important component of one’s identity, see Coeriel et al v. The Netherlands. Aliens Act, Section 9 gives effect to a long-standing tradition in the Namibian community that the wife normally assumes the surname of her husband, and no other husband has expressed a wish to assume his wife’s surname since the Aliens Act entered into force in 1937. The purpose of differentiation created by the Aliens Act was to achieve legal security and certainty of identity, and are thereby based upon reasonable and objective criteria.

It is further submitted that Section 9, paragraph 1 of the Aliens Act does not restrict Mr. Müller from assuming his wife’s name, but provides a simple and uncomplicated procedure, which would enable the author to fulfil his wish. The present case distinguishes from Burghartz v. Switzerland by that the author in that case had no remedy to assume his surname in a hyphenated form to his wife’s surname.

The State party contends that article 26 of the Covenant is characterised by an element of unjust, unfair and unreasonable treatment, which is not applicable to the author’s case, nor has it been contended that the purpose of Aliens Act Section 9, paragraph 1 was to impair males in Namibia individually or as a group.

In response to the author’s claim under article 23, paragraph 4 of the Covenant, the State party contends that in accordance with this article, and the Committee’s interpretation in General Comment 19, Namibian law permits the author to participate on equal basis with his spouse in choosing a new name, although he must proceed in accordance with laid down procedures.

Regarding Mr. Müller’s claim under article 17, paragraph 1 of the Covenant, the State party contends that this right only protects the author from arbitrary, meaning unreasonable and purposelessly irrational, or unlawful interference with his privacy. Viewing the purpose of Aliens Act Section 9, paragraph 1 as described above, inasmuch the author may change his surname if he so wishes, the law is not unreasonable, and does not violate the State party’s obligations under article 17, paragraph 1.

The State party contests the remedies sought by the author.

By submission of 5 March 2001, the authors responded to the State party’s observations.

Mr. Müller does not dispute that he could have made an application to change his surname in the terms of the Aliens Act. However, he contends that it is the procedure required for men who wish to change their surname, which is discriminatory. It would therefore have been contradictory to comply with the prescribed procedure.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the complaint is admissible under the Optional Protocol to the Covenant.

In relation to all the alleged violations of the Covenant by Mr. Müller, the Committee notes that the issues have been fully raised under domestic procedures, and the State party has confirmed that Mr. Müller has exhausted domestic remedies. There are therefore no obstacles for finding the communication admissible under the Optional Protocol article 5, paragraph 2 with regard to Mr. Müller.

In relation to the claims by Ms. Engelhard, the State party has contested that domestic remedies have been exhausted. Even if Ms. Engelhard could have pursued her claim through the Namibian court system, together with her husband or separately, her claim, being quite similar to Mr. Müller’s, would inevitably have been dismissed, as Mr. Müller’s claim was dismissed by the highest court in Namibia. The Committee has established jurisprudence, (Barzhig v. France), that an author need not pursue remedies that are indisputably ineffective, and concludes therefore that Ms. Engelhard’s claims are not inadmissible under the Optional Protocol article 5, paragraph 2. Although the State party has abstained from commenting on the merits of Ms. Engelhard’s claims, the Committee takes the view that it is not precluded from examining the substance of the case also with regard to her claims, as completely identical legal issues concerning both authors are involved.

The Committee has also ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee therefore decides that the communication is admissible as far as it may raise issues under articles 26, 23, paragraph 4, and 17, paragraph 1, of the Covenant. The Committee has examined the substance of the authors’ claims, in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

With regard to the authors' claim under article 26 of the Covenant, the Committee notes the fact, undisputed by the parties to the case; that section 9, paragraph 1, of the Aliens Act differentiates on the basis of sex, in relation to the right of male or female persons to assume the surname of the other spouse on marriage. The Committee reiterates its constant jurisprudence that the right to equality before the law and to the equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. A different treatment based on one of the specific grounds enumerated in article 26, clause 2 of the Covenant, however, places a heavy burden on the State party to explain the reason for the differentiation. The Committee, therefore, has to consider whether the reasons underlying the differentiation on the basis of gender, as embodied in section 9, paragraph 1, remove this provision from the verdict of being discriminatory.

The Committee notes the State party's argument that the purpose of Aliens Act section 9, paragraph 1, is to fulfil legitimate social and legal aims, in particular to create legal security. The Committee further notes the States party's submission that the distinction made in section 9 of the Aliens Act is based on a long-standing tradition for women in Namibia to assume their husbands' surname, while in practice men so far never have wished to assume their wives' surname; thus the law, dealing with the normal state of affairs, is merely reflecting a generally accepted situation in Namibian society. The unusual wish of a couple to assume as family name the surname of the wife could easily be taken into account by applying for a change of surname in accordance with the procedures set out in the Aliens Act. The Committee, however, fails to see why the sex-based approach taken by section 9, paragraph 1, of the Aliens Act may serve the purpose of creating legal security, since the choice of the wife's surname can be registered as well as the choice of the husband's surname. In view of the importance of the principle of equality between men and women, the argument of a long-standing tradition cannot be maintained as a general justification for different treatment of men and women, which is contrary to the Covenant. To subject the possibility of choosing the wife's surname as family name to stricter and much more cumbersome conditions than the alternative (choice of husband's surname) cannot be judged to be reasonable; at any rate the reason for the distinction has no sufficient importance in order to outweigh the generally excluded gender-based approach. Accordingly, the Committee finds that the authors have been the victims of discrimination and violation of article 26 of the Covenant.

In the light of the Committee’s finding that there has been a violation of article 26 of the Covenant, the Committee considers that it is not necessary to pronounce itself on a possible violation of articles 17 and 23 of the Covenant.

The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 26 of the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, avoiding any discrimination in the choice of their common surname. The State party should further abstain from enforcing the cost order of the Supreme Court or, in case it is already enforced, to refund the respective amount of money.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognised the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognised in the Covenant and to provide an effective and enforceable remedy in case a violation has been established, the Committee wishes to receive from the State party, within ninety days, information about the measures taken to give effect to the Committee's Views. The State party is also requested to publish the Committee's Views.