Recent happenings in the country, for instance the murder of the 4-year-old toddler who was with his mother in police custody, raised questions regarding the Ombudsman’s role in safeguarding citizens’ rights. New Era journalist Roland Routh interviewed Ombudsman Advocate John Walters to offer clarity on some issues concerning the role of the Ombudsman.
NE: Give us an overview of the duties and role of the Ombudsman’s office.
JW: The Ombudsman is a constitutional office and being a creature of statute, the Ombudsman is obliged to carry out his duties as prescribed by the law. The work of the Ombudsman is directed towards one goal i.e. to achieve equitable outcomes for complainants and to foster improved and fair administration of justice by ministries and other governmental institutions. The main functions and duties remain receiving and investigating complaints relating to maladministration, in fact, bad administration, violations of human rights and fundamental freedoms, misappropriation of public monies and misuse of government property and the overutilization of living natural resources and irrational exploitation of non-renewable resources. In the course of the interaction between citizen and government or officials, the citizen may complain that the government or official has acted wrongly, in essence a matter of maladministration. It is my view that the citizen has a right to proper administration and good governance. When government or officials dismiss a complaint the aggrieved citizen takes the complaint to the Ombudsman. It is further my view that the aggrieved person has a right to complain and a right of ready access to the Ombudsman. The Ombudsman’s task is to conduct an investigation and then to give a judgment. It requires the Ombudsman to dig deep into the operations of government when it is said to have ill-functioned. The Ombudsman then tries to establish what had happened in the interaction between citizen and government. This requires deployment of all the powers at his disposal, for example information gathering, collection of materials, interviewing parties and any witness, etcetera.
NE: What is the focus area for the Ombudsman’s Office this year?
JW: The Ombudsman has a very broad, but unique mandate and circumstances sometimes require that one mandate receives more emphasis than the other. Our focus will remain our main duty to receive and investigate complaints relating to our mandates, but we will also complete ongoing projects and embark on new ones. The ongoing projects which we will endeavour to complete are the national human rights action plan, as well as the formulation of a draft white paper on indigenous peoples’ rights in Namibia. Other projects comprise a report on the detention, treatment and release process of persons who were declared State President Patients and those who are referred for mental observation by courts. We will further focus on the recruitment and appointment of a Children’s Advocate, social workers and legal practitioners who will in particular deal with children’s rights issues and with human rights violations in general. We will also focus on the opening of a fourth regional office in Rundu as soon as offices are available, on continuous human rights education, awareness raising campaigns and a special human rights education project for schools. Other focus areas include campaigns to address violence against women and children in conjunction with stakeholders and advocacy for amendments to the Combating of Domestic Violence Act, plus the drafting of the constitution in simple language and the translation thereof in other vernaculars.
NE: What is the most common complaint that your office receives from the general public?
JW: Poor or no service delivery, for example neglecting or refusing to reply to queries, failure to provide information, failure to provide reasons, carelessness, undue delays, harsh or improper treatment etcetera by officials are everyday realities in the lives of citizens and the Ombudsman. Other complaints are failure to pay leave gratuity, delays in payment of pension benefits, delays or refusal to pay subsistence and travel allowances, lack of promotion, transfers without consultation, recruitment policy not followed, delays in issuing certificates of domicile, work permits, permanent residence permits and citizenship certificates, and so on.
NE: There is a public perception that the Office of the Ombudsman is a duplication of duties and some members of the public do not see the essence of having this important office? JW: The Ombudsman is a unique institution in the country and from what is said about the duties and role of the Ombudsman, it is clear that there is no other body or institution tasked to investigate complaints relating to maladministration and violations of human rights, and in fact performing such duties.
However, the duty of the Ombudsman to investigate complaints relating to the misappropriation of public monies and misuse of government property by officials may be perceived as a duplication of the duties of the police and the ACC. Misappropriation of public monies, in my view, is plain theft and misuse of government property may border on corruption, so we usually refer these complaints to the appropriate institutions.
NE: What significant cases has the Office of the Ombudsman handled and what was the outcome in those cases?
JW: We do not rate complaints (or cases) as significant or less significant. We are an individual complaint handling office, and every complainant’s case is very important and we treat all complaints as such. However, the high number of complaints by inmates about the inordinate delay in the preparation of appeal records of proceedings and the filing thereof with the Registrar of the High Court necessitated a formal investigation by the Ombudsman. The outcome thereof was a special report titled: ‘Is this Justice?’, containing a number of recommendations, which was tabled in the National Assembly.
NE: This year we are going to have general elections. Are you adequately resourced to handle some of the complaints anticipated in this election year? If yes, please elaborate.
JW: The answer to this question is yes. During 2013, the government approved a new enlarged staff establishment for the Ombudsman, in terms whereof our staff will increase from 33 to 55. The establishment of two further regional offices at Rundu and Otjiwarongo with permanent staff was also approved. As soon as offices are available at these places, we will advertise the positions, which will increase the number of regional offices to five. This will not only increase the visibility of the office but will bring the office closer to the people with more people having easy access to the office. The budget was likewise increased.
NE: What are some of the operational challenges facing your office? And how have you been able to manage these challenges?
JW: When a complainant files a complaint with us, it means that he/she has a ‘problem’, which requires our attention. The complainant then expects action from the Ombudsman, which is geared towards solving the ‘problem’, which gave rise to the complaint. But the ultimate responsibility for providing the solution lies with the relevant authority. Here lies our biggest challenge, the failure to respond or no response from the institution complained about. In all cases where an official fails to respond to our enquiries within a given period of time, I will subpoena him/her to appear before me to provide the requested information or documents. This is but one of the powers of the Ombudsman, which we will use to overcome this challenge.
NE: How does your office enforce its recommendations?
JW: The recommendations of the Ombudsman are not legally binding. His proposals and recommendations are based on the persuasiveness and strength of legal and factual arguments. However the constitution gives the Ombudsman the power ‘to bring proceedings in a competent court for an interdict or some other suitable remedy….’ This is a power, which we use sparingly, because of the high costs involved in litigation. We choose our legal battles cautiously and take only those where we have a reasonable prospect of success to court. Our recommendations are usually accepted, but not always implemented.
NE: What happens after the Ombudsman’s Office has instituted an investigation such as in the case where a child was recently killed in a police holding cell?
JW: Once the investigation into any complaint is finalized, the complainant and the institution or official complained about, are informed of the outcome of our investigation. In the case of the toddler who unfortunately met his death in the police detention cells, I will send my draft report with recommendations to the Inspector-General of the Namibian Police for his comments, which will be incorporated in the final report and the report will then be made public.
NE: Does the Ombudsman’s Office follow up on cases of human rights violations in police holding cells or prisons?
JW: We investigate complaints alleging human rights violations in prisons and police detention cells. When the complaint is about assaults or other abuses, which we regard as criminal, we request the police (Complaint and Discipline Unit) to investigate them. In a specific case where an inmate served a year longer than the imposed custodial sentence, which I considered as an infringement of his right to liberty, we assisted him to institute a civil claim against the responsible ministry. In this case the custodial sentence of the magistrate’s court was set aside by the Review Court and substituted with a fine or a sentence of imprisonment. Neither the prison authority nor the person was informed of the ‘new sentence’, which resulted in the person serving a longer custodial sentence.
NE: Any information of significance that you would like to share with the public?
JW: I only wish to add that we are there to serve and our services are free of charge. Our annual complaint intake clinic programme, where we will visit towns and villages at least once or twice per year, will continue. We will publish the programmes of the regional offices and head office in the media for people to know of our visits. Last, but not least, citizens are free to contact our offices for advice or information.