Marius Olivier, Extraordinary Professor, Faculty of Law, Northwest
University; Director: Institute for Social Law and Policy (ISLP);
Presentation: 1st Namibia Social Protection Conference 2015:
“Towards Comprehensive Social Protection For All” – 7-9 July 2015
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The Namibian Constitution: Relevance of international and
regional law
ILO Instruments on Social Security
UN instruments and standards
AU instruments and standards
SADC instruments and standards
Social protection for informal workers
Overall assessment
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The Namibian Constitution of 1990 adopts an
international law-friendly approach. Article
144 stipulates:
◦ “Unless otherwise provided by this Constitution or
Act of Parliament, the general rules of public
international law and international agreements
binding upon Namibia under this Constitution shall
form part of the law of Namibia."
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This and other provisions in the Constitution
conveys
important
considerations
and
intentions
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Article 95, on the Promotion of the Welfare of the
People, requires of the Namibian State to actively
promote and maintain the welfare of the people by
adopting, inter alia, policies aimed at membership of
the International Labour Organisation (ILO) and, where
possible, adherence to and action in accordance with
the international Conventions and Recommendations of
the ILO.
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Similarly, article 96 on Foreign Relations, expects of the
State to endeavour to ensure that in its international
relations, it fosters respect for international law and
treaty obligations.
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Social
Security
(Minimum
Standards)
Convention, 1952 (102)
Social Protection Floors Recommendation,
2012 (202)
Transition from The Informal to Formal
Economy Recommendation, 2015 (204)
Equality of treatment (Social Security)
Convention, 1962 (118)
Employment Injury Benefits Convention 1964 ,
A-1980 (121)
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In validity, Old Age and Survivors Benefits
Convention, 1967 (128)
Medical Care and Sickness Benefit Convention,
1969 (130)
Maintenance of Social Security
Rights
Convention, 1982 (157)
Employment Promotion and Protection against
Unemployment Convention, 1988 (168)
Maternity Protection Convention, 2000 (183)
 ILO
Convention 102 of 1952
 Defines
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the nine branches of social security:
Medical care benefit, sickness benefit, unemployment benefit,
old-age benefit, employment injury benefits, maternity benefit,
family benefit, invalidity benefit, survivors’ benefit.
 Sets
minimum standards for the nine branches:
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Minimum percentage of personal coverage;
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Minimum level of benefits;
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Maximum
to benefit;
qualifying
period
Minimum duration of benefits
for
the
entitlement
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Based on commonly agreed social security principles:
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Guarantee of defined benefits;
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Participation of protected persons in administration;
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General responsibility of the State for:
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Due provision of benefits; and
Proper administration of institutions and services (e.g. through
regular actuarial reviews).
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Collective financing;
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Adjustment of pensions in payment;
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Right of appeal in case of refusal or complaint as to its quality or
quantity;
Equality of treatment.
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ILO Recommendation 202 of 2012, i.e. the
Recommendation concerning National Floors of
Social Protection indicates that basic social security
guarantees, including basic income security and
health care, at least at a nationally defined
minimum level, should be available to particular
vulnerable categories, including children, the aged,
and persons in active age who are unable to earn
sufficient income, in particular in cases of sickness,
unemployment, maternity and disability, via
different approaches which serve the national
context.
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ILO Recommendation 204 of 2015 on the
Transition from the Informal to the Formal
Economy Recommendation suggests that
countries should progressively extend, in law
and practice, to all workers in the informal
economy,
social
security,
maternity
protection, decent working conditions and a
minimum wage.
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UN Declaration of Human Rights of 1948
◦ Art 22: right to social security and linkage with dignity and
personality development
◦ Art 25(1): adequate standard of living
◦ Art 25(2): protection of mothers and children
◦ Art 25(3): employment benefits
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International Covenant on Economic, Social and Cultural
Rights of 1966 (ICESCR)
◦ Importance and status: detailed exposition; significant provisions;
public and private measures
◦ Art 9: social security and to social insurance
◦ Art 10: family assistance; maternity protection
◦ Art 11: adequate standard of living: adequate food; clothing &
housing; improvement of living conditions
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International Covenant on Economic, Social and
Cultural Rights of 1966 (ICESCR) (cont)
◦ Prioritising the plight of the marginalised and the
excluded
 General Comment No 4: Article 11(1) of the ICESCR
(adequate standard of living) - state parties to give
"due priority to those groups living in unfavourable
conditions by giving them particular consideration". It
has also held that "… policies and legislation should
correspondingly not be designed to benefit already
advantaged groups at the expense of others.“
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To same effect: new General Comment No 19
(2008) on the right to social security (art 9 ICESCR)
◦ Indicating core components of the right to social security
◦ Stressing several elements: availability, accessibility and
affordability
◦ Reiterating three main state obligations: to respect, protect,
fulfil
◦ Suggesting various ways in which social security can be
extended
◦ Emphasising in particular the rights of and extending
protection to migrant workers and informal sector workers
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Other UN instruments – the UN Convention
on the Rights of Persons with Disabilities
(UNCRPD), 2006
◦ Namibia has ratified this instrument, as well as the
Optional Protocol allowing for individual complaints
◦ Important for developing Return-to-Work (RTW)
framework, policy and legislation in the area of
workmen’s compensation
◦ Submission of Namibia’s country report?
◦ Social protection and social security – a developing
agenda
◦ AU Social Policy Framework (2009)
◦ AU Migration Policy Framework (2006)
◦ Specialised frameworks: see Social Protection for
the Informal Economy and Rural Workers 20112015 (SPIREWORK)
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Draft Declaration on Employment and Poverty
Eradication in Africa
AUC-RECs-ILO-IOM-UNECA
Migration Programme
Joint
Labour
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Social Charter (Charter of Fundamental Social
Rights in SADC)
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Labour law and social security protection
Workers and those not employed covered
Article 10: lead article
Article 8: Retirement
Arts 6: Equality
Art 7: Children and young people
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Social Charter (Charter of Fundamental Social
Rights in SADC) (cont)
◦ Art 9: Disability
◦ Paid maternity leave & OHS
◦ Implementation
 National tripartite institutions
 Existing regional structures
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Code on Social Security in the SADC
◦ Non-binding nature: encouraging the progressive
attainment of standards
◦ Purposes: strategic direction, including guidelines;
a set of principles and standards, a monitoring
framework, co-ordination, harmonisation and
convergence
◦ Underlying & flexible principles
 Solidarity and redistributions
 Variable geometry
◦ Rights-based approach & entitlement to
 Social insurance
 Social assistance
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Code on Social Security in the SADC (cont)
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Specific contingencies (arts 7-12 & 18)
Vulnerable categories (arts 13-17)
Overarching issues (arts 19 & 20)
Informal forms of social security
Extended family notion
Prevention and integration
Broader social protection framework
Implementation & monitoring (art 21)
 Carrot rather than a stick approach
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A new Protocol containing binding norms?
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Protocol on Employment and Labour (2014)
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Art
Art
Art
Art
Art
Art
Art
Art
Art
Art
11:
12:
13:
14:
15:
16:
17:
18:
19:
20:
Social Protection
OHS
Health care
Retirement and protection of elderly persons
Unemployment and under-employment
Maternity and paternity
Persons with disabilities
Children and young people
Labour migration
Informal employment
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Evaluation
◦ Significant potential for further unfolding of social
security in the domestic context
◦ Variety of approaches indicating SADC-specific and
–sensitive standard-setting
 Types of provisions
 Implementation mechanisms
 Flexible notions
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Conceptual developments. Some countries have
tackled the heart of the issue by redefining the
concept of employee at the highest level of
legislation. India, Tanzania and others have
significantly broadened the employee concept in
labour law and social security definitions and
tackled challenging sectors like dependent
contractors in complex supply chains.
For recent examples, see the draft social security
legislation for Lesotho and Swaziland
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Embracing the whole informal economy. At a similarly high
level, some governments have extended existing arrangements at once to the entire informal market. National health
insurance arrangements in Cape Verde, Ghana and Rwanda
provide excellent examples of this type of initiative. See also
the Ghana Informal Sector Fund.
Breaking up the problem into sectors. In other instances,
rather than attempting to solve the problem on an economywide basis, policymakers have chosen key sectors to initiate
change. Sector-based approaches have been used in South
Africa’s domestic worker environment, for example, and
applied to a number of different groups in Tunisia and to
some of the welfare schemes in India.
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Tailoring approaches to specific segments. Narrowing the focus
yet further, some governments have focused on specific groups
in the informal economy, or self-initiated frameworks have been
established by informal economy bodies. The success of the Self
Employed Women’s Association in India provides an excellent
example, along with initiatives like the Community Health Fund
in Tanzania.
Tailor-made
scheme
design
characteristics.
Design
characteristics, in the form of specialised contribution
modalities, relaxed entitlement criteria and context-sensitive
benefit packages, for the informal economy as a whole, or for
particular sectors, have assisted in addressing the challenge on
why informal workers were unwilling, if not unable to participate
in the past. See, e.g., the Ghana Informal Sector Fund.
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Contribution modalities include (1) allowing informal workers to
contribute to the extent of their ability at a frequency that suits
their particular context and contributory capacity, for example,
in Ghana, (2) adopting realistic income baselines for the
calculation of contributions, for example, in Tunisia, and
(3) topping up small contributions of poor workers by way of
government subsidies, for example in India and Tanzania.
Relaxed entitlement criteria allow informal workers to access
benefits without complying with lengthy periods of contribution
or other onerous conditions. Dedicated, context-sensitive
benefit arrangements are addressing the key short- and longterm needs of informal workers. They may not include all the
traditional social security benefit categories, but simultaneously
provide for the use of benefits towards other core needs, such as
education.
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Introducing change as part of an integrated
whole. Some policymakers have chosen to
tackle the problem holistically, combining
efforts to reach participants in the informal
economy as part of a dedicated framework
suited to the informal work context including
elements like job creation and labour market
insertion programmes (including public works
programmes).
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It is not difficult to see that what characterises all
of these efforts is political commitment at the
highest level. Ghana’s initiatives were spurred on
by a Presidential Commission and India’s by a
government-appointed commission. While changes
like these are impressive, they need support from
the top of government structures to produce
enduring change. Also, specialised arrangements
for those working informally have to be supported
by supplementary arrangements, with particular
reference to access to finance and markets.
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Until recently: Limited evidence of overarching SP policies
and strategies in SSA
However, this is fast changing
◦ Adoption of policies in, e.g. Benin, Cape Verde, Ethiopia, Lesotho, Kenya,
Mozambique, Niger, Rwanda, Senegal and Zambia
◦ Large-scale adoption/current development of sectoral policies
◦ Drafting of SP/social development policies/strategies in Ghana, Lesotho,
Liberia, Nigeria, South Sudan, Togo
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National priority: SP often made part of/prioritised in
long-term National Development Plans and Poverty
Reduction Strategy Papers
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Inconsistent regulatory picture:
◦ Labour law and (public) social security contributory context usually
regulated
◦ Social assistance and SP transfers invariably lack a legal framework – mere
policies, or even just programmes
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Despite widespread ratification of core ILO labour Conventions,
implementation is limited due to (generally) weak trade unions
and underlying bi- and tripartite structures; inadequate
inspection capacity; a poor OHS record
In contrast, ratification of ILO social security Conventions (in
particular post-World War II Conventions) is conspicuous by its
absence
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ILO Recommendations 202 of 2012 (National Floors of Social
Protection) and 204 of 2015 (Transition from the Informal to
the Formal Economy) may prove to be important instruments,
despite limitations
UN human rights instruments widely ratified and significant –
e.g. General Comment No 19 (2008) on social security
Crucial also are AU (social policy; migration) and regional
instruments (SADC; ECCOWAS, EAC, etc)
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General picture: Fragmented, often donor-initiated and –driven,
and not part of overall SP policy or strategy
Distinct approaches discernible – e.g.:
 Southern Africa, Middle Africa and West Africa
 LICs and MICs
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Active labour market programme measures (ALMPs):
 As a rule, alone-standing & not linked to assist exit from dependency on
welfare arrangements and not enhancing long-term integration
 Important exceptions: e.g. Ghana’s LEAP & LIPW; Ethiopia’s PSNP; Lesotho’s
Integrated Watershed Management Project (IWMP)
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Public works programmes potentially important, but costly,
temporary and weak exit links
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Public contributory schemes in MICs are limited with regards to  Persons covered, and
 Range, quality and adequacy of benefits
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Several factors inhibit effectiveness of contributory arrangements:
 Exclusion of the majority of those who work – informal economy workers
 Systemic failures: Perceived mismanagement, high costs, system fragility,
deficient service delivery, inappropriate funding arrangements and lack of
willingness to register and/or contribute
 Lucrative arrangements - civil servants and politicians: public purse burden
 Employer liability (e.g. sickness, maternity and occupational injury benefits) as
opposed to public scheme liability
 Occupational/private arrangements: Weak regulation and poor alignment with a
multi-tiered framework of provision and protection
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Factors inhibiting effectiveness (cont):
 Detrimental impact of lump-sum instead of regular benefits on household
survival: continued reliance on weak social assistance and SP systems
 Absent cross-border social security arrangements (e.g. portability), despite
some bi- and multilateral arrangements
 Weak in-country scheme coordination and benefit harmonisation
 Gender-, disability- and nationality-based discrimination
 Overemphasis on compensation
 Transformative and promotive role of social protection/security not sufficiently evident
 Preventative arrangements (e.g. OHS) weakly developed
 Insufficient labour market links – e.g. labour market and social integration; return-towork arrangements
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National health insurance: innovative arrangements (Senegal);
encouraging signs of significant coverage (Ghana; Rwanda)
Micro-insurance schemes: consolidation and strengthening needed
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Some SSA countries have extensive social assistance schemes (e.g. South
Africa, Gabon, Mauritius) in place
 Remarkable achievements - directly and indirectly - in addressing poverty, improving
quality of life, strengthening health and educational indicators, and support of smallscale economic opportunities
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Generally, improper alignment of these and basic SP arrangements
(social transfers) with exit/graduation strategies and LM integration
Other problems: Poor registration & targeting, limited fiscal ability,
insufficient government prioritisation, lack of impact assessment
Basic SP initiatives/social transfers: categorical & localised focus,
fragmented nature, lack of government ownership
 Scaling up of donor-initiated programmes has often proved to be problematic
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Informal social security arrangements need to evolve
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Adoption of policy and strategic frameworks
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Increased political commitment and fiscal reprioritisation
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Establishment of comprehensive and multi-tiered social security
systems
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Introduction of national retirement and health insurance schemes
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Conversion of lump-sum into regular benefit arrangements
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Coverage extension to the informal economy
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Focus on developing social protection floors in some countries and
addressing vulnerabilities/impoverished groups
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Targeted SP policy, SP strategy & legal frameworks required
to serve as basis and mandate
Improve ratification
and
implementation
record of
overarching international, continental & regional standards
Develop synergies amongst SP interventions
Link ALMPs to exit/graduation
Address inefficiencies in contributory schemes
Need to improve social assistance and upscale social
transfers schemes
Ensure government ownership at all stages