In 2010, the petition was firstly brought before the High Court of Namibia, against the Namibian Government, by three patients of various public hospitals who claimed that they had been sterilized through bilateral tubal ligations without their having given informed consent. They claimed that the sterilization procedure that was done on them without their consent, because they were HIV-positive. They claimed that the following rights guaranteed in the Namibian Constitution (Constitution) had been violated: the right to life in terms of Article 6 of the Constitution; the right to liberty in terms of Article 7 of the Constitution; the right to human dignity in terms of Article 8 of the Constitution; the right to equality and freedom from discrimination in terms of Article 10 of the Constitution; and the right to found a family guaranteed in terms of Article 14 of the Constitution.
While the parties of the case agreed that a sterilization procedure is unlawful unless informed consent is obtained, The Court considered under its analysis: i) if the Namibian government state hospital medical practitioners performed sterilization procedures without obtaining informed consent from the plaintiffs; ii) Whether the medical practitioners’ failure to obtain informed consent from the plaintiffs infringed the right to life, the right to liberty, the right to human dignity, and the right to found a family, constitutionally recognized; iii) Whether the forced sterilization was in fact due to the HIV positive status of the women and therefore constituted discriminatory practice; and iv) whether the rights to life, liberty, human dignity, the right to found a family, and the right to equality and freedom from discrimination were violated against the petitioners.
Namibia’s High Court found that although the petitioners had signed consent forms, there was no evidence that the health providers had given adequate and sufficient information to the plaintiffs under circumstances in which they fully appreciated the consequences of sterilization. There were no records to capture that informed consent was properly obtained. The Court therefore held that the Namibian Government had not proved that its agents had properly obtained informed consent from all three plaintiffs before undertaking the sterilization procedure. On the second claim, of discrimination due to the petitioners’ HIV-positive status, the Court held that they failed to substantiate their claim based on the evidence presented. The Government of Namibia appeal this judgement and the case was send to the Supreme Court of Namibia for revision.
The Supreme Court analyzed whether the agents, for whose conduct the Namibian Government was responsible, had performed sterilization procedures without obtaining informed consent from the respondents.
Unlike the High Court of Namibia in this case, the Supreme Court related informed consent to the rights recognized in the Namibian Constitution, especially the rights to dignity, to physical integrity and to found a family. The Court established that it was the woman’s choice to decide to bear children or not, and therefore the decision must be made freely and voluntarily.
The Supreme Court evaluated whether the three patients, subjected to sterilization, had the intellectual and emotional capacity to give informed consent. The circumstances under which the Government’s agents alleged to have obtained informed consent from the patients – that is, during labor – would not support the claim that the latter had the intellectual and emotional capacity to give independent and free consent. Further, the Court relied on the absence of any clinical record that indicated that the health providers had discussed the nature and risks of the sterilization procedure with the respondents. Therefore, the Supreme Court found the health providers had not properly obtained informed consent of these patients. The appeal was dismissed.