The Ombudsman: Toothless or Enabler?

JOHANNES PENDAPALA UUSIKUTHE ESTABLISHMENT of the Office of the Ombudsman soon after independence suggests a commitment by the government to broaden recourse to redress, with a special focus on the previously disenfranchised, and an attempt to institutionalise accountability.

The task of the office in Namibia is made easier by legal and constitutional provisions. The most important of these provisions is the constitutional recognition that the office must serve as a guardian of citizens’ rights. To this end, the Constitution provides for people to seek restitution if their rights are violated, and the ombudsman plays the role of intermediary, which makes the rules of the institution acceptable to both citizens and rulers.

The Constitution not only provides for the mandate of the ombudsman, more crucially, it guarantees its institutional autonomy.

Notwithstanding these features, public faith in the ombudsman’s office has been diminishing, as it has been wobbling in its performance. The reasons being largely as a result of over-Centralisation of the government, bureaucratisation, and the unwillingness of the government to become truly democratic.

The performance and effectiveness of the ombudsman’s office over the years has been greeted with mixed feelings; it has received both plaudits and criticism, which triggers an interesting question whether the ombudsman is a toothless bulldog or an underutilised enabler.

The ombudsman’s office has been labelled as a toothless bulldog largely as a result of the following key factors:

(i) Absence of clear and strong measures on the reports of the ombudsman: Section 6(2) of the Ombudsman Act of 1990 states that the ombudsman shall submit annually a report with recommendations to the speaker of the National Assembly in connection with all the ombudsman’s activities during the previous year.

The law is silent on what the National Assembly should do with the reports. Ideally, the ombudsman’s reports to the National Assembly must be for the purpose of discussions and enforcement of the recommendations. The absence of clear and strong measures on the reports of the ombudsman means that there is no support system available in the National Assembly to give effect to these reports.

To cement this position, The Namibian of 29 August 2019 reported that ombudsman John Walters has raised concerns that the country’s legislature has failed the institution ever since its establishment by not enforcing recommendations contained in the annual reports.

Another notable factor that warrants the office of the Ombudsman tag as a toothless bulldog is the lack of resources. Both financial and human resources continue to be problems that hamper the effective and efficient execution of its mandate.

The potentially acrimonious relationship between the ombudsman and the Ministry of Justice hinders the institution’s effectiveness as well. The ombudsman is viewed as an integral, yet independent, part of the Ministry of Justice. Moreover, it has the ability to investigate transgressions committed by government officials.

Disconcertingly, the [executive director in the ministry] has the ability to overrule a decision made by the ombudsman, which may be deemed to be politically inappropriate. Not only could this potentially hamper the independence of the ombudsman; it also could serve as a potent cocktail of personality-based or political clashes.

Thus, this relationship may have an impact on the accountability and oversight of the ministry over the ombudsman. This may result in the investigative powers of the ombudsman being circumscribed, specifically in cases where the investigation is deemed politically risky.

The resultant effect of the above three factors is that Namibian citizens cannot meaningfully seek redress against maladministration and human rights abuses, nor can they complain about poor governance and service delivery. Thus, it is fair to conclude that the ombudsman’s office is a toothless bulldog, as opposed to an underutilised enabler.

South Africa’s office of the public protector, which has the same role as that of our ombudsman, performed well under the leadership of Thuli Mandonsela from 2009 to 2016. Key lessons which Namibia’s ombudsman can learn from Mandonsela are to be impartial, and to exercise the powers conferred on him by the enabling legislation and the Constitution without fear, favour or prejudice.

In order for the ombudsman’s office to be effective, it is suggested that mechanisms should be put in place to strengthen compliance with the findings and recommendations of the ombudsman. Financial and human resources, particularly the shortage of administrators and investigators, should be seriously addressed.

Lastly, it is suggested that the Office of the Ombudsman be detached completely from the Ministry of Justice, and that it be given complete financial and operational autonomy.

• Johannes Pendapala Uusiku holds an LLB degree from the University of Namibia and an LLM degree from the University of Cape Town. He is currently pursuing a PhD in commercial law at UCT. He lectures commercial law at Unam. These are his personal views.

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