A legal Framework for Occupational Health and Safety in Namibia (a section taken from the National Occupational Health Policy), by Alina Munkawa, Namibia Namibia gained her independence in 1990 after a long era of colonialism. The vision of Namibia in 2030 is about people and one of the major concerns is population’s social, particularly health, economic and overall well-being. Through the National Occupational Health Policy; as recently launched in August 2007, Namibia acknowledges the existence of the occupational health and safety challenges and considered various legal framework, including the Labour Act, 2004 (Act 15 of 2004), Government Notice No. 156 Labour Act 1992: “Regulations Relating to the Health and Safety of Employees at Work”, Employees’ Compensation Amendment Act, 1995 (Act No 5 of 1995), HIV Code of Employment, and others as adequate to address such challenges. Since its official enforcement in Namibia in 1997, the health and safety services suffered a major suffocation resulting from the lack of consistency within the so-called legal framework. The very apparent example of inconsistency exists in use and application of the terminology “occupational disease” or synonymous thereof across the mentioned legislation. The Employees’ Compensation Amendment Act, No 5 of 1995 prescribes manners of registering employees under the Employees Compensation Fund for them to be eligible to compensation for workplace diseases, injuries or losses. The Act refers to the work-related diseases as industrial diseases from which a list was drawn to conclude on scheduled industrial diseases. All diseases outside the schedule are considered in terms of the Act as not legible for compensation. The Labour Act’s Regulations Relating to Health and Safety of Employees at Work which was promulgated two years after the Employees’ Compensation Amendment Act, No 5 of 1995, referred to the work-related diseases as occupational diseases. The Regulations also listed many diseases and work involving exposure to several risk as constituting “notifiable occupational diseases”. The two lists compiled under the two documents are however not in agreement with one another, neither the context implied by the two terms scheduled industrial diseases and the notifiable occupational diseases. This means having identifying and reporting an occupational diseases in terms of the Regulations does not necessarily imply the same disease is due for submitting a claim in terms of Employees’ Compensation Amendment Act, No 5 of 1995. Although the National Occupational Health Policy and the National Guidelines on Post-Exposure Prophylaxis at the Workplace made references to the Employees’ Compensation Amendment Act, No 5 of 1995, it failed to notice that it’s definition of occupational diseases’ concept differs greatly from that of the Act, particularly the exclusion of HIV/AIDS from the list of diseases eligible for the compensation. Could the National Occupational Health Policy and the National Guidelines on Post-Exposure Prophylaxis at the Workplace wrongfully guiding in this regard? The Employees’ Compensation Amendment Act, No 5 of 1995 has, coincidentally eluded to define the term industrial disease the main subject that, one may say, has caused the existence of the policy. Furthermore, the criteria used to reach at the narrowed scheduled industrial diseases’ list are also vague.
Similarly, the Regulations’ list of occupational disease is independent from the Employees’ Compensation Amendment Act, No 5 of 1995, and the sole law that regulates the compensation for occupationally-acquired diseases. The terms “occupational disease” and “scheduled disease” happen to appear in different legislation with rather vague or clashing meanings. As per situational analysis presented in the National Occupational health Policy, the Employees’ Compensation Amendment Act, No 5 of 1995 covers occupational diseases at mines, industries and enterprises, however, the current schedule of occupational diseases eligible for compensation does neither list of occupational diseases arising within the health sector, nor correspond with the list of notifiable diseases in the “Regulations Relating to the Health and Safety of Employees at Work. The policy however further states that the inadequate completion of prescribed accident reports poses difficulties with regard to the final diagnosis and compensation of occupational diseases (e.g. HIV and Hepatitis B), meaning the Policy also refers to occupationally-acquired HIV/AIDS as an occupational diseases beside acknowledging the fact it is not recognised as such by the Employees’ Compensation Amendment Act, No 5 of 1995. The Policy has somehow implicated the actual reason why the Employees Compensation Commission shall not honour the compensation claim for occupationally acquired HIV/AIS or Hepatitis. As per Guidelines for Implementation of National Code on HIV/AIDS in Employment, the employees who contract HIV/AIDS during the course of their employment should follow the standard compensation procedures and receive standard compensation benefits”. The guidelines did not mention the body responsible for such compensation although the only one fund that administers the compensation for occupationally-acquired diseases excludes HIV/AIDS from the scheduled diseases’ list. In conclusion, it is indicative that the information contained in the discussed documents carries vague meaning for users and use of meanings among law makers is hardly coherent. The organisation of the information could be improved by providing the direct definition of major terms, e.g. occupational or industrial diseases, instead of just presenting the duty holder with the conclusion of what the law maker has decided is included or excluded in the concept. Last but not least, there should be a common terminology for the major term to avoid confusion and too many meanings for supposedly one concept. Only then, can the law makers critically analyse one another’s’ documents and make appropriate and reliable references to them.