Establishment of the Ombudsman
From The Constitution of
The Republic of Namibia
Article 89 [Establishment and Independence]
(1) There shall be an Ombudsman, who shall have the powers and functions set out in this Constitution.
(2) The Ombudsman shall be independent and subject only to this Constitution and the law.
(3) No member of the Cabinet or the Legislature or any other person shall interfere with the Ombudsman in the exercise of his or her functions and all organs of the State shall accord such assistance as may be needed for the protection of the independence, dignity and effectiveness of the Ombudsman.
(4) The Ombudsman shall either be a Judge of Namibia, or a
person possessing the legal qualifications which would entitle him or her to practice in all the Courts of Namibia.
Article 90 [Appointment and Term of Office]
(1) The Ombudsman shall be appointed by Proclamation by the President on the recommendation of the Judicial Service Commission.
(2) The Ombudsman shall hold office until the age of sixty-
five (65) but the President may extend the retiring age of any Ombudsman to seventy (70).
Article 91 [Functions]
The functions of the Ombudsman shall be defined and prescribed by an Act of Parliament and shall include the following:
a) the duty to investigate complaints concerning alleged or apparent instances of violations of fundamental rights and freedoms, abuse of power, unfair, harsh, insensitive or discourteous treatment of an inhabitant of Namibia by an official in the employ of any organ of Government (whether central or local), manifest injustice, or corruption or conduct by such official which would properly be regarded as unlawful, oppressive or unfair in a democratic society;
b) the duty to investigate complaints concerning the functioning of the Public Service Commission, administrative organs of the State, the defence force, the police force and the prison service in so far as such complaints relate to the failure to achieve a balanced structuring of such services or equal access by all to the recruitment of such services or fair administration in relation to such services;
c) the duty to investigate complaints concerning the over-
utilization of living natural resources, the irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems and failure to protect the beauty and character of Namibia;
d) the duty to investigate complaints concerning practices and actions by persons, enterprises and other private institutions where such complaints allege that violations of fundamental rights and freedoms under this Constitution have taken place;
e) the duty and power to take appropriate action to call for the remedying, correction and reversal of instances specified in the preceding Paragraphs through such means as are fair, proper and effective, including:
aa) negotiation and compromise between the parties concerned;
bb) causing the complaint and his or her finding thereon to be reported to the superior of an offending person;
cc) referring the matter to the Prosecutor-General;
dd) bringing proceedings in a competent Court for an interdict or some other suitable remedy to secure the termination of the offending action or conduct, or the abandonment or alteration of the offending procedures;
ee) bringing proceedings to interdict the enforcement of such legislation or regulation by challenging its validity if the offending action or conduct is sought to be justified by subordinate legislation or regulation which is grossly unreasonable or otherwise ultra vires;
ff) reviewing such laws as were in operation before the date of Independence in order to ascertain whether they violate the letter or the spirit of this Constitution and to make consequential recommendations to the President, the Cabinet or the Attorney-
General for appropriate action following thereupon;
f) the duty to investigate vigorously all instances or alleged or suspected corruption and the misappropriation of public monies by officials and to take appropriate steps, including reports to the Prosecutor-General and the Auditor-General pursuant thereto;
g) the duty to report annually to the National Assembly on the exercise of his or her powers and functions.
Article 92 [Powers of Investigation]
The powers of the Ombudsman shall be defined by Act of Parliament and shall include the power:
a) to issue subpoenas requiring the attendance of any person before the Ombudsman and the production of any document or record relevant to any investigation by the Ombudsman;
b) to cause any person contemptuous of any such subpoena to be prosecuted before a competent Court;
c) to question any person;
d) to require any person to co-operate with the Ombudsman and to disclose truthfully and frankly any information within his or her knowledge relevant to any investigation of the Ombudsman.
Article 93 [Meaning of “Official”]
For the purposes of this chapter the word “official” shall, unless the context otherwise indicate, include any elected or appointed official or employee of any organ of the central or local Government, any official of a para-statal enterprise owned or managed or controlled by the State, or in which the State or the Government has substantial interest, or any officer of the defence force, the police force or the prison service, but shall not include a Judge of the Supreme Court or the High Court or, in so far as a complaint concerns the performance of a judicial function, any other judicial officer.
Article 94 [Removal from Office]
(1) The Ombudsman may be removed from office before the expiry of his or her term of office by the President acting on the recommendation of the Judicial Service Commission.
(2) The Ombudsman may only be removed from office on the ground of mental incapacity or for gross misconduct, and in accordance with the provisions of Paragraph (3).
(3) The Judicial Service Commission shall investigate whether or not the Ombudsman shall be removed from office on the grounds referred to in Paragraph (2) and, if it decides that the Ombudsman shall be removed, it shall inform the President of its recommendation.
(4) While investigations are being carried out into the necessity of the removal of the Ombudsman in terms of this article, the President may, on the recommendation of the Judicial Service Commission and, pending the outcome of such investigations and recommendation, suspend the Ombudsman from office.