The Ombudsman: Namibia (NHRI)
Submission to the
Committee on the Rights of the Child
Submitted on 16 January 2012
The Ombudsman: Namibia was established under Chapter 10 of the Namibian Constitution and the Ombudsman Act, No 7 of 1990. It is a hybrid office, that is classical Ombudsman with additional mandates. The mandates are the investigation of complaints relating to maladministration; violation of human rights and freedoms, the over-utilization of living natural resources, the irrational exploitation of non-renewable resources and the misappropriation of public monies and other property by officials. Namibia does not have a separate human rights institution and by virtue of this specific human rights mandate, the Ombudsman is the national human rights institution. The office received a status “A” accreditation from the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) during April 2006.
Given our oppressive past, the Ombudsman must credit the government for the enormous effort it has made to improve the human rights situation in Namibia. However, much more needs to be done to ensure that the rights and freedoms guaranteed in our Constitution and the international instruments, ratified by Namibia, become a reality for all Namibians. The government must also be commended for the frank way in which issues are address in the State Report. It will be difficult to limit the submission to the 2007 position only. The submission will also touch on the current position in regard to some issues. The submission of the Ombudsman will emphasize key children rights issues that need to be addressed to give effect to constitutional guarantees. Some of these issues were addressed in the 2006 Annual Report of the Ombudsman.
FACT AND REALITY: FREE EDUCATION CHAPTER 3 ARTICLE 20 OF THE NAMIBIAN CONSTITUTION VERSUS THE EDUCATION ACT (NO 16 OF 2001) WITH REGARD TO THE PAYMENT OF SCHOOL DEVELOPMENT FUND CONTRIBUTION (SDF): IMPACT ON ORPHANS AND VULNERABLE CHILDREN (OVC): A BRIEF DISCUSSION Introduction The inaccessibility to free and compulsory primary education has been addressed by the U.N. Committee on Economic, Social and Cultural Rights as follows: “The requirement that primary education be provided, without charge to the child, parents or guardians are unequivocal. The provision of “free” primary education is not conditional on the availability of resources. Accordingly the obligation to ensure that primary education shall be compulsory and free to all applies to all situations including those in which local communities are unable to furnish buildings or individual are unable to afford the costs associated with attendance school” Cited by: Jayawikrama N: The Judicial Application of Human Rights p.896 The Namibian Constitution versus the Education Act Does the Education Act violate the letter and spirit of the Namibian Constitution as far as free and compulsory education is concerned? To answer the question, allow me to analyse the relevant provisions of the Constitution and the Act first and then draw the necessary conclusions. In terms of Article 20 (2) of the Constitution the State shall provide reasonable facilities to render effective the right to education to every resident within Namibia by establishing and maintaining state schools at which primary education will be provided free of charge (emphasis added). This obligation is amplified by the Education Act: In terms of section 33, the Ministry of Education must: a) “establish and maintain state schools and classes for the provision of primary education… b) establish and maintain hostels, teachers’ resource centres, school clinics and other facilities which may be necessary for the benefit of learners and teachers in attendance at state schools and classes….” In terms of section 38(1) “all tuition provided for primary and special education in state schools including all school books, education materials and other related requisites must be provided free of charge until the 7th grade or until the age of 16 years …. “ (Emphasis added). In terms of section 38 (2) a learner to whom education other than primary education, is provided, must pay such fees as the Minister may determine (emphasis added).