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Racial Discrimination Prohibition Act

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RACIAL DISCRIMINATION PROHIBITION ACT 26 OF 1991
[GOVERNMENT GAZETTE:23 DECEMBER 1991 No.328 ] [DATE OF COMMENCEMENT: 23 DECEMBER 1991] ACT
To render criminally punishable, in pursuance of the provisions of Article 23 of the
Namibian Constitution, certain acts and practices of racial discrimination and
apartheid in relation to public amenities, the provision of goods and services,
immovable property, educational and medical institutions, employment,
associations, religious services, and involving the incitement of racial disharmony
and victimisation; to amend the Liquor Ordinance, 1969 and the Admission of
Persons to Namibia Regulation Act, 1972;and to provide for matters incidental
thereto.
BE IT ENACTED by the National Assembly of the Republic of Namibia, as follows:-
1. Definitions
In this Act-
“racial group”
means a group of persons defined by reference to colour, race,
nationality or ethnic or national origin.
2. Access to and use of public amenities and facilities
(1) No person shall-
(a) deny any other person access to or the use of any public amenity or any
facility in a public amenity;
(b) permit any other person such access or use on less favourable terms or
conditions than those upon which he or she would otherwise permit such
access or use; or
(c) require any other person to leave or cease to use any such amenity or
facility, because such other person is a member of a particular racial
group.
(2) No person shall in respect of any public amenity apply any practice or
policy whereby any facility or service available at such public amenity is provided to
members of the public on a segregated basis according to colour, race, nationality or
ethnic or national origin.
(3) For the purposes of subsections (1) and (2),”public amenity” means-

(a) any public accommodation establishment, including any hotel, guest-
house, pension, rest camp, guest farm, holiday farm, caravan park or any
other premises in or upon which accommodation is normally available for
and provided to members of the public;
(b) any public recreation area, including any game park, nature reserve, tourist
recreation area, holiday resort or any other similar area to which members
of the public normally have access or may obtain admission either free of
charge or against payment of a fee;
(c) any public restaurant, including any refreshment room, tea room or other
premises in or upon which food or drink (whether alcoholic or not)for
consumption on the premises is normally provided to members of the
public;
(d) any public conveyance which members of the public are normally entitled
or allowed to use for travelling, whether by air, rail, road or sea;
(e) any theatre or other premises where a dramatic performance, play, concert
or film is presented or shown to members of the public;
(f) any premises where an exhibition, sports meeting or any function is held
or any event takes place which members of the public have been invited or
are normally allowed to attend.
3. Provision of goods and services
No person engaged in any business, trade or profession for the provision of goods or
services to the public, or any person employed by a person so engaged, shall-
(a) refuse or fail on demand to provide such goods or services to any other person; or
(b) provide any other person with such goods or services on less favourable terms or
conditions than those upon which he or she would otherwise provide such goods
or services, because such other person is a member of a particular racial group.
4 Immovable property
No person who, whether as principal or agent-
(a) intends to sell or otherwise dispose of any immovable property or any
right therein, shall-
(i) refuse or fail to sell or so dispose of such property or right to any
other person; or

(ii) sell or so dispose of, or offer to sell or so dispose of, such property
or right to any other person on less favourable terms and
conditions than have been or are or would be offered to other
persons, because such other person is a member of a particular
racial group;
(b) intends to let or in any other manner grant any right to occupy any
immovable property or any part thereof, shall-
(i) refuse or fail to let or grant such right to any other person; or
(ii) let or grant such right, or offer to let or grant such right, to any
other person on less favourable terms and conditions than have
been or are or would be offered to other persons, because such
other person is a member of a particular racial group;
(c) has entered into an agreement with any other person for the sale or
disposal otherwise of immovable property or any right therein, or for the
lease or grant of any other right of occupation of such property or any part
thereof, shall terminate such agreement because such other person is a
member of a particular racial group.
5. Educational institutions
(1) No person responsible for the management of, or employed at, an
educational institution, shall-
(a) deny any other person admission to such educational institution as a pupil
or student;
(b) permit any other person such admission on less favourable terms or
conditions than those upon which he or she would otherwise permit such
admission; or
(c) where any other person has been admitted to an educational institution,
deny or restrict the use by such other person of any facility or service
available at or provided by such institution, or in any other manner treat
such other person less favourably than he or she would otherwise treat any
other pupils or students of
that educational institution,
on the ground of that other person’s race, colour or creed.
(2) For the purposes of subsection (1)”educational institution” means any
school or institution at which education is provided and includes any university,
technikon or college or any other establishment where vocational or technical training or
instruction is provided.

6. Medical Institutions
(1) No person responsible for the management of, or employed at, a medical
institution shall-
(a) deny any other person admission to such medical institution as a patient
for the purpose of receiving treatment or for visiting any patient of the
institution;
(b) permit any other person such admission on less favourable terms or
conditions than those upon which he or she would otherwise permit such
admission; or
(c) where any other person has been so admitted, deny or restrict the use by
such other person of any facility or service available at or provided by
such institution or in any other manner treat such other person less
favourably than he or she would otherwise treat other patients of the
institution or other visitors calling at such institution,
because such person is a member of a particular racial group.
(2) For the purposes of subsection (1)”medical institution” means any
hospital, nursing home, clinic and any other place where patients receive treatment and
includes a maternity home.
7Employment
(1) No employer, or any person acting on behalf of an employer, shall, when
seeking to employ a person on work of any description-
(a) refuse or fail to appoint a person who has applied for such work and has
the required skills or qualifications;
(b) appoint or offer to appoint a person with the required skills or
qualifications on terms and conditions, including conditions in relation to
access to benefits, facilities or services, which differ from those which
apply to other employees of the employer with the same or substantially
similar skills or qualifications and who perform the same or substantially
similar duties, on the ground of that person’s race, colour or ethnic origin.
(2) No employer or any person acting on behalf of an employer, shall dismiss
any employee or subject him or her to any other detriment in circumstances in which
other employees of that employer performing similar work are not or would not be
dismissed or are not or would not be subjected to such detriment, on the ground of that
employee’s race, colour or ethnic origin.

8 Associations
No association of persons shall, whether by any provision in its constitution, or in
accordance with any policy or practice-
(
a ) deny any person admission to membership of that association;
(b) permit any person such membership on less favourable terms or conditions
than those upon which such association would otherwise permit such
admission; or
(c) where any person has been admitted to membership of that association,
deny or restrict the use by such person of any facility or service provided
by the association or in any other manner treat such person less favourably
than such
association would otherwise treat any other member of that
association, because such other person is a member of a particular racial
group.
9 Religious services
No person shall deny any other person access to any organised religious service
conducted by a religious institution because such other person is a member of a particular
racial group and not a member of that institution.
10 Advertisements
No person shall publish or display, or cause or permit to be published or displayed, any
advertisement or notice that indicates an intention to perform any act prohibited in terms
of sections 2 to 9,both inclusive.
11 Inciting racial disharmony
(1) No person shall publicly use any language or publish or distribute any
written matter or display any article or do any act or thing with intent to-
(a) threaten, ridicule or insult any person or group of persons on the ground
that such person belongs or such persons belong to a particular racial
group; or
(b) cause, encourage or incite disharmony or feelings of hostility, hatred or ill-
will between different racial groups or persons belonging to different
racial groups;
(c) disseminate ideas based on racial superiority.
(2) For the purposes of subsection (1)”article” shall include any flag, insignia
or emblem.

(3) No person shall establish, support or be a member of or participate in the
activities of an organization or movement of which the aim is to engage in acts of
violence against members of any particular racial group or in activities aimed at causing,
bringing about, promoting or contributing towards any such acts.
12 Victimisation
No person shall perform or cause to be performed any act to the detriment of any other
person, or treat such other person less favourably than in those circumstances he or she
treats or would treat other persons, on account of the fact, or because he or she suspects
or believes, whether or not the suspicion or belief is justified or correct, that that other
person-
(a) has laid, or intends to lay, a criminal charge against the first-mentioned
person or any other person pursuant to any provision of this Act; or
(b) has furnished, or intends to furnish any information or document relating
to the institution of criminal proceedings against the first-mentioned
person or any other person in terms of this Act or has given, or intends to
give, evidence before a court in connection with such proceedings.
13 Exemptions
Nothing in this Act contained shall be construed as prohibiting the preferential treatment
of any person pursuant to a policy or program contemplated in Article 23 (2) of the
Namibian Constitution which is aimed at the advancement of persons who have been
socially, economically or educationally disadvantaged by discriminatory laws or practices
which have been enacted or practised before the independence of Namibia.
14 Offences and penalties
Any person who contravenes any provision of sections 2 to 12, both inclusive, shall be
guilty of an offence and on conviction be liable-
(a) in the case of an offence in terms of any of those sections, except section
11, to a fine not exceeding R50 000 or to imprisonment for a period not
exceeding 10
years or to both such fine and such imprisonment; and
(b) in the case of an offence in terms of section 11,to a fine not exceeding R80
000 or to imprisonment for a period not exceeding 15 years or to both such
fine and such imprisonment.
15 Competent orders in relation to licences, registration certificates and other
authorizations
(1) Where any person who is convicted of an offence in terms of this Act is
the holder of a licence, registration certificate or other authorization for or in respect of

the public amenity, business, trade or profession, or educational institution or medical
institution in connection with which the offence was committed, the court convicting
such person may, notwithstanding the provisions of any other law, in addition to any
penalty which it imposes under this Act-
(a) declare such licence, registration certificate or authorization cancelled;
(b) suspend such licence, registration certificate or other authorization for
such period as the court deems just; or
(c) make such other order in relation to such licence, registration certificate or
other authorization, including the imposition of conditions, as may seem to
the court appropriate in the circumstances.
(2) Whenever any licence, registration certificate or other authorization is
cancelled or suspended, or any other order is made in relation thereto, in terms of
subsection (1),the clerk of the court concerned shall inform the authority which issued
such licence, registration certificate or other authorization in writing of such
cancellation, suspension or order, as the case may be.
(3) Where a person who is convicted of an offence in terms of this Act is not
or is believed not to be a Namibian citizen, the court convicting such person shall cause a
written notification to be furnished to the Minister of Home Affairs with particulars of the
person so convicted and the offence for which he or she was convicted.
16 Compensation or damages
(1) Whenever the court convicts any person of an offence under this Act, the
court may, upon the application of the complainant, if he or she has suffered damage as a
result of an act in respect of which that person was so convicted, award the complainant
compensation for such damage.
(2) The provisions of paragraph (a) of subsection (1) and subsections (2), (3),
(4) and (5) of section 300 of the Criminal Procedure Act, 1977 (Act 51 of 1977), shall
mutatis mutandis apply to any application and award contemplated in subsection (1).
17 Vicarious responsibility
Where any person who does or omits to do any act which constitutes an offence in terms
of this Act, acted in a capacity of agent or employee, the employer or principal of such
agent or employee shall be deemed himself or herself to have done or omitted to do the
act in question, unless the court is satisfied that-
(a) he or she neither connived at nor permitted the act or omission by the
agent or employee concerned;
(b) he or she took all reasonable steps to prevent the act or omission; and

(c) an act or omission, whether lawful or unlawful, of the nature charged on
no condition or under no circumstances fell within the scope of the
authority or employment of the agent or employee concerned, and the fact
that such employer or principal issued instructions whereby an act or
omission of that nature is prohibited shall not in itself be sufficient to
prove that he or she
took all reasonable steps to prevent the act or
omission.
18 Trial only at instance of Prosecutor-General
No trial for an offence under this Act shall be instituted without the written authority
given personally by the Prosecutor-General in each case.
19 Act binding on employees of State
This Act shall bind all persons in the employment of the State.
20 Amendment of Ordinance 2 of 1969
(1) The Liquor Ordinance, 1969 is hereby amended by the insertion after
section 101 of the following section:
“101A Restriction of admission to restricted portion
(1) No holder of an accommodation establishment on-consumption
licence shall maintain on the premises of the accommodation establishment any
restricted portion to which admission is allowed by such licence holder only to
guests of that accommodation establishment unless such restricted portion has
been specially set apart for that purpose by virtue of a condition imposed under
section 81 (1)(b) to the effect that only guests of the accommodation
establishment concerned and their companions may be supplied with liquor in
such restricted portion.
(2) A condition as contemplated in subsection (1) may only be
imposed by a competent authority-
(a) upon a written application in the prescribed form of the holder of
an accommodation establishment on-consumption licence or of a
person applying for the issue to him or her of such a licence; and
(b) if the competent authority is satisfied that adequate facilities will
be available on the premises of the accommodation establishment
concerned for the supply of liquor to visitors to such establishment
who will not ordinarily be entitled to access to such restricted
portion.

(3) Where a restricted portion has been set apart in accordance with
the provisions of subsections (1) and (2), no person shall be permitted to be in the
restricted portion concerned unless he or she is a guest of the accommodation
establishment or is a companion of such a guest who is present in such restricted
portion.
(4) At every entrance to a restricted portion set apart in accordance
with the provisions of subsections (1) and (2), a notice shall be affixed clearly
indicating that the right of admission to such restricted portion is reserved for
guests and their companions.
(5) Any holder of an accommodation establishment on-consumption
licence who contravenes subsection (1) or who, whether personally or by his or
her servant, agent or nominee, in any restricted portion set apart in accordance
with the provisions of subsections (1) and (2), sells or supplies any liquor to any
person who is not a guest or the companion of a guest who is present in such
restricted portion, shall be guilty of an offence and on conviction be liable to a
fine not exceeding R2 000 or imprisonment for a period not exceeding six months
or to both such fine and such imprisonment.
(6) For the purposes of this section “guest” means any person to whom
bedroom accommodation, with or without meals, for reward is provided in the
accommodation establishment concerned and in respect of whom the prescribed
particulars have been entered into the guest register required to be kept in terms of
section 41 of the Ordinance.”.
(2) Subsection (1) shall in relation to any person who is the holder of an
accommodation establishment on-consumption licence on the date of commencement of
this Act, come into operation on 1 April 1992.
21 Amendment of Act 59 of 1972
The Admission of Persons to Namibia Regulation Act, 1972 is hereby amended by the
addition in Schedule 1A of the following: “Contravention of any provision of the Racial
Discrimination Prohibition Act, 1991 which constitutes an offence under that Act.”.
22 Repeal of Act 3 of 1979,Act 10 of 1980 and Act 21 of 1981
(1) Subject to the provisions of subsection (2), the Abolition of Racial
Discrimination (Urban Land and Public Amenities)Act,1979, the Abolishment of Racial
Discrimination (Urban Areas and Public Amenities)Amendment Act,1980, and the
Abolition of Racial Discrimination (Urban Land and Public Amenities)Amendment Act,
1981, are hereby repealed.
(2) Notwithstanding the repeal of the Abolition of Racial Discrimination
(Urban Land and Public Amenities) Act, 1979, by subsection (1), that Act shall, for the
purposes of any charge in any criminal proceedings for any offence which a person has,

before the commencement of this Act, committed, and the imposition of any penalty in
relation thereto, remain in force as if the provisions of this Act had not been passed.
23 Short title
This Act shall be called the Racial Discrimination Prohibition Act, 1991.

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