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Is the Ombudsman a toothless tiger?
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09 August 2019 Author   Magreth Nunuhe
According to its constitutional mandate, the Office of the Ombudsman promotes and protects human rights, fair and effective administration, combats misappropriation or misuse of public resources and protects the environment and natural resources of Namibia through the independent and impartial investigation and resolution of complaints and through raising public awareness.
Matters which can be investigated by the Ombudsman are maladministration, human rights violations, environmental issues relating to the over-utilisation of living natural resources, corruption and misappropriation of public monies and property. While many have a glimpse of the functions of the Ombudsman, others confuse its mandate with that of the Anti-Corruption Commission. In light of a perception that there is a status quo of government corruption, favouritism of certain people and groups over others, resource wasting and maladministration, some have called the Ombudsman’s Office a toothless institution wasting the tax-payers money as th
e long-standing negative situation seems to only get worse.
What is the contribution of the Ombudsman to law enforcement and good governance and how relevant has that office been since its inception in 1990? The Windhoek Observer’s Magreth Nunuhe (MN) spoke to the Ombudsman Mr John Walters (JW) to shed more light on this subject.

MN: Is the Ombudsman a toothless office?
JW: We are not there to bite. Our job is to resolve matters against public administration. If we receive a complaint against public administration, for example a long delay in a court judgement or the issuing of a permanent residence visa, then the Ombudsman can take up that matter. I write to the accounting officer to enquire why the matter is delayed. Now, who is to blame when the problem did not originate in the Ombudsman’s Office? 
I am dependent on speedy response of the public administration. Unfortunately they are very unresponsive. Even when a Minister does not comply with the Ombudsman’s request, what must I do? I must go to court to force them to respond or act? Did Government provide the Ombudsman with sufficient resources? Public officials refuse to cooperate with the Ombudsman. If you look at my budget – it is controlled by the Ministry of Justice and the Ministry of Finance.  I can’t even buy a chair in my office. I know there is a precarious financial situation in the country, but if you cut the Ombudsman’s budget, you cut his effectiveness. The President says we can do a lot without money. Yes, I am giving free advice to people, but some are calling me from Katima (Mulilo), saying their rights are violated. What must I do? I don’t have an office there. If there are complaints in Luderitz, I can’t just let officers drive from Keetmanshoop to Luderitz without looking at whether we have enough money for S&T. We receive so many
complaints but money is just not enough.
When I started in 2004, we only had one office but I have built on the successes of my predecessors. We have five offices now in Keetmanshoop, Oshakati, Swakopmund, Otjiwarongo and Katima Mulilo. Government is supposed to provide the Ombudsman’s Office with all resources, but we get no external support to procure office space. The Ombudsman has a specific job to bring his office closer to the people in this vast country, but many people have no access to internet. People have the right of access to the Ombudsman – they have a right to complain to the Ombudsman. I must take those rights seriously.
Every year we work out an Annual Complaint Intake Programme where we have community meetings to resolve less complex issues and visit places of detention. We have a staff compliment of around 50 people, but many more vacancies can’t be filled because of our financial position. There is a position for Deputy Head of Administration but can’t be filled. In 2018, complaints dropped significantly by 500, the reason was because we could only visit regions once for the whole year due to budget limitations.
MN: The Ombudsman is appointed by the President on the recommendation of the Judicial Service Commission. Excluded from the Ombudman’s jurisdiction is Members of Parliament and Members of Cabinet to the extent of Immunity legislation applicable to them.  There is an argument that the ideal Ombudsman should be completely independent, totally divorced from the Executive, Legislature and Judiciary - legally and operationally. Is the Office of the Ombudsman as currently configured and empowered, independent?
JW: The Constitution provides that the Ombudsman is independent only subject to the law. No person or organ of State, be it the Executive, Legislature, Judiciary shall intervene in the execution of the duties of the Ombudsman. Government provides public officials who assist in the execution of the duties of the Ombudsman, but nobody prescribes to me which case I must take on.  It’s solely at my discretion.  Nobody did that in the past 15 years I have been in office. But the Office of the Ombudsman is eroded in that it cannot have its own budget. 
The Ombudsman’s Act of 1990 is outdated and does not comply with the guiding principles – the Paris principles. The government of Namibia and my office have been urged by the United Nations treaty bodies to amend the Ombudsman’s Act. For the past three to four years, we have been working on it but it is not yet concluded.  I promised the international body of Global Alliance of Human Rights Institutions that it will be in Parliament this year. I will make sure that all the requirements for autonomy of independence will be expressly provided for.

MN: How do you have any autonomy when you are appointed by the President?
JW: Do you believe in our judiciary? Do you believe in their independence? Do you believe that the judges are not prescribed how to formulate their judgements? The Constitution provides for the independence of the judges.  It is the exact wording in my appointment. I am appointed in the same manner as a judge. I receive the same salary as a judge of the High Court. I am no less independent than the judges.  Do I not live out my independence?  Anybody, show me where I do not live my independence.

MN: Is the Ombudsman allowed to investigate Members of Parliament?
I am allowed. They have privileges, but they do not enjoy immunity. Only the sitting President enjoys immunity. Article 4 (1) (b) of the Ombudsman Act (Powers of the Ombudsman) provide that “the Ombudsman or any person on his or her staff authorized thereto by the Ombudsman in writing shall have, subject to the provisions of any law regulating the privileges or immunities of the President, members of the Cabinet or Parliament or any other persons or institutions provided for in any law-”.  Privileges include the money – the allowances - I cannot question them.  Immunity – if the law provides that a Member of Parliament is immune, I cannot.  It’s only when a law does not – then it falls under my jurisdiction.

MN: Is the Ombudsman allowed to investigate unethical conduct of members of Parliament?
JW: Unethical conduct – that’s why there are differences between the kinds of Ombudsman and Public Protectors.  Some can look at ‘unethical behaviour’. My colleague in South Africa, her mandate is maladministration, unethical behaviour of MPs, normal Ombusdman work, and corruption. They do not have an anti-corruption commission in South Africa. I do not have that jurisdiction. Our Parliament regulates itself and they investigate their own ‘unethical behaviour’. If unethical behaviour borders on corruption or mismanagement, that’s a criminal offense.  They are not immune against criminal offense.

MN: What is the ideal Office of the Ombudsman?
JW: When our founding fathers and mothers deliberated on the constitution creating the Ombudsman and the legislature, they did not foresee that one office would not be sufficient.  We were 1.5 million people at the time, but as the country grew and the population grew, the Ombudsman had to adapt to that, but the Ombudsman’s Office did not grow in line with that.  We try to adapt with what we have. It is a sad reality as I sit here and I have no money. We try with the little we have.
The ideal is to have an office in Rundu with three investigators and support in order to visit places like Tsumkwe or Aminius every year.  We can’t reach all the people all the time as circumstances require. Our staff (50 people) is not sufficient.  We need a dedicated litigation unit to take institutions or persons to court.  I am dependent on lawyers from outside – the Justice (Ministry) only pays them.
The Ombudsman’s Act is outdated. We are working on a new bill which I hope will go through Parliament quickly – the Minister of Justice promised we will have a new bill. The bill will reflect the autonomy of the Ombudsman.  In compliance with our guiding principles, that will also reflect that the Ombudsman can recruit own staff and recommend to the Prime Minister to appoint and not through the Public Service Commission.  Although the Ombudsman is appointed by the President on recommendation of the Judicial Commission, the Ombudsman is accountable to Parliament through his annual report. In the annual report I must inform Parliament and the people of Namibia what activities I undertook the preceding year and how I spent my budget.  I have been Ombudsman for 15 years and not a single year have I been called to account.  It seems I am irrelevant to Parliament.

MN: What are some of the issues that were reported to your office last year?
JW: The majority of complaints were against public administration. That does not mean we found the government wrong in all the cases against public administration.  Others were human rights violations – in 2017, while monitoring places of detention, we discovered that trial awaiting prisoners were not receiving their three meals per day. They claimed lack of resources. Environment complaints – we looked at how town and village councils manage their solid and liquid waste.  We found a number of places where sewerage is running down the streets. Very recently, I was in Katutura, sewerage is running like a river - that was more than a month ago, no answer.  I brought it under the attention of the CEO of City of Windhoek.  I told you non-responsiveness is one of my challenges.

MN: If you do not get a response, what is your next step?
JW: Then I have to subpoena them to my office. If they do not react, it is a criminal offense. That is the enforcement power I have.

MN: When last did you go to court?
JW: The last time I went to court was for the illegal detention of foreigners in the country where the court ordered their release in 2017.

MN: There is sometimes a confusion of the mandate of the Ombudsman and the Anti-Corruption Commission?
JW: The Anti-Corruption Commission investigates criminal offenses. Mind you, that was the mandate of the Ombudsman until 2004. Thereafter after the ACC was established.  They have the power to arrest and bring people to court. The Ombudsman does not have those powers. I am dependent on “how can I persuade?” But there is nothing like persuasive powers.  It doesn’t work in African democracies.  But when I generalise, there are always exceptions.