| Mandates of the Office of the Ombudsman |
 |
 |
 |
Four distinct mandates can be identified from the provisions of the Constitution of the Republic of Namibia as well as the provisions of the Ombudsman Act (Act 7 of 1990). The four broad mandates are the following: The Ombudsman Act provides that the Ombudsman must receive complaints before it can act on a specific matter to investigate and to give the proper remedies. ADMINISTRATIVE PRACTICES The public at large have to deal with government officials on a daily basis. There is a general expectation that such officials be fair, polite, sensitive, etc. towards a member of the public. It happens in specific cases that such an official departs from the standards that are expected from him or her. The general public needs protection against such officials, because the officials are at times put at places where they have been given certain powers. Such powers must be exercised fairly and timeously. The Ombudsman has a duty to offer the necessary protection. The Ombudsman will carry out such an investigation and thereafter propose suitable remedies if the complaint is found to be true. The Ombudsman can negotiate or mediate between the parties as part of methods to resolve the problem. The Ombudsman can also make recommendations to the relevant Respondent Institutions to take action against an officer or to have the offending practices stopped. Should such a recommendation not be carried out by the Respondent Institution, the Ombudsman can approach the High Court, by way of an application to obtain an interdict for the enforcement of its recommendation to have the offending actions stopped or to have its recommendation implemented. It is important to note that the jurisdiction of the Ombudsman relating to issues of administrative practice are limited to officials in the employ of any organ of Government (National or Local Government) as well as officials in the employ of para-statals enterprises owned, managed or controlled by the State or an enterprise in which the State or government has a substantial interest. Officials in the Namibian Police, Namibian Defence Force as well as the Prison Service are also subject to the jurisdiction of the Ombudsman for issues relating to administrative practices. Judges of the Superior Courts are not regarded as officials for the purposes of the investigations of the Ombudsman. A judicial officer, like a magistrate, is also not subject to the investigations of the Ombudsman for action resulting from the performance of a judicial function. There are good examples of incidents where the Ombudsman can intervene and provide remedies. The following are such examples. An inhabitant of Namibia applies to the Ministry of Home Affairs for citizenship. The officials at the relevant Ministry fail to process the application. The concerned person can approach the Ombudsman. The Ombudsman will investigate the conduct of the relevant official and the basis of the refusal to process the application. The Ombudsman will also satisfy itself whether the relevant person complies with the requirements for citizenship in terms of the Namibian Constitution as well as the other laws. A recommendation will then be made to the Ministry of Home Affairs to process the application. Another example is where an official employed by the Government Institutions Pension Fund (GIPF) fails or neglects to make pension payments. An aggrieved person may approach the Ombudsman, who will satisfy itself about the facts of the matter as well as the relevant laws and regulations and make recommendations to GIPF to offer the remedies. HUMAN RIGHTS The Constitution of the Republic of Namibia as well as the Ombudsman Act (Act no. 7 of 1990) provides a functions to the Ombudsman to investigate allegations concerning the breach of Fundamental Rights. In addition to those provisions, the Namibian Bill of Rights provides for the enforcement of Fundamental Rights and Freedoms. Article 25(2) states that an, "Aggrieved person who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom, and may approach the Ombudsman to provide them with such legal assistance or advice as they require, and the Ombudsman shall have the discretion in response thereto to provide such legal or other assistance as he or she may consider expedient." It is therefore clear that the Ombudsman has a mandate to investigate allegations of the breach of fundamental Rights and Freedoms which are set out in the Namibian Bill of Rights. The Ombudsman has a duty to enforce the Namibian Bill of Rights to supplement the work of the Courts. In dealing with the Human Rights mandate the Ombudsman has a two-prong approach. The first approach is to receive complaints from an aggrieved person. Such a complaint will be investigated. If the Ombudsman is satisfied that a violation of a fundamental right or freedom has occurred, the Ombudsman may provide suitable remedies including those provided for in the Ombudsman Act as well as the remedies provided for in Article 25(2) of the Namibian Constitution. The second approach to the human rights mandate, by the Ombudsman, is through outreach programmes and the specific human rights education. It is important that the population be educated about human rights in general and on ways to be used to enforce their rights. These outreach programs are done in collaboration with other stakeholders like NGO's, community leaders, local authorities, etc. It is important to note that as far as the human rights mandate is concerned, the Ombudsman's jurisdiction is not limited to public officials. The Ombudsman can investigate complaints against public officials as well as private person, private enterprises or any other private institutions. The rights that will be covered are set out in the Namibian Bill of Rights and entails the following: Protection of Fundamental Rights and Freedoms (Article 5). Protection of Life (Article 6); Protection of Liberty (Article 7); Respect for Human Dignity (Article 8); Slavery and Forced Labour (Article 9); Equality and Freedom from Discrimination (Article 10); Arrest and Detention (Article 11); Fair Trial (Article 12); Privacy (Article 13); Family (Article 14); Children' Rights (Article 15); Property (Article 16); Political Activity (Article 17); Administrative Justice (Article 18); Culture (Article 19); Education (Article 20); Fundamental Freedoms (Article 21). CORRUPTION The right to development is also a human right in terms of the international discourse on human rights. It is not part of the Namibian Bill of Rights, possibly because of its place in the classification of human rights in terms of the Generation of Rights. It is the so called Third Generation Rights. There are many factors that may affect the right to development in Namibia. If officials who are tasked to assist in the administration of the country resort to benefit themselves, we will sacrifice the right to development. It is because of this reality that the Ombudsman has a Constitutional duty to vigorously investigate allegations of corruption. Corruption may take various forms and involves abuse of State property, self-enrichment, nepotism, theft, conflict of interest, etc. The Ombudsman normally acts upon a complaint from a member of the public, but the Ombudsman Act provides under Article 3(2) that a 'reasonable believe' by the Ombudsman will be deemed to be a complaint. This means that in most cases were issues of corruption or abuse of public funds or property is concerned the Ombudsman can act out of own motion. The Ombudsman has extensive powers to seize documents as part of its investigations. Having done a corruption investigation the Ombudsman can provide remedies provided for in Act no. 7 of 1990, which will include reporting to the Auditor-General as well as the Prosecutor-General for action. ENVIRONMENT The mandate on environment is also linked to the issues around the rights to sustainable development. The Ombudsman must receive complains on the over-utilization of living natural resources and provide remedies thereon. The living natural resources are the fishing industry, wildlife, etc. The irrational exploitation of the non-renewable resources is likewise a duty for the Ombudsman to investigate upon receiving a complaint. This would include a matter like the exploitation of the Namibian mineral resources. The Ombudsman must further ensure that ecosystems are not destroyed and that the beauty and character of Namibia is maintained. Examples of this mandate can be found in issues like the Epupa dam where the right to development had to be balanced against other rights like the right to a culture. The issue around the San people in Namibia is also a good example where the Ombudsman's role is to protect their culture, protect the environment they are living in from land degradation and to ensure that the ecosystems in those areas are maintained, through establishment and proper management of conservancies. |