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Home / On the spot - Walters on sodomy law, outdated Ombudsman Act 

On the spot - Walters on sodomy law, outdated Ombudsman Act 

2021-07-23  Maria Amakali

On the spot - Walters on sodomy law, outdated Ombudsman Act 
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Outgoing ombudsman John Walters (65) will bid the civil service goodbye next week after a 17-year stint at the helm of the Office of the Ombudsman. New Era journalist Maria Amakali interviewed him this week on his illustrious tenure and future endeavours.


MA: You have been at the helm of the Office of the Ombudsman since 2004 and are arguably one of the longest-serving ombudsmen of the republic. Can you share with us some of your highlights and lowlights during your tenure?

JW: I can start by stating that we made a difference. As an individual complaint handling mechanism, we not only received and investigated between 35 000 and 40 000 complaints in the past 17 years but more than 35 000 people had direct or indirect access to the ombudsman. When we see numbers, we see the individuals behind those numbers. We maintain that persons have a right to complain and a right to access to the ombudsman – and through our work, we raised these rights to fundamental rights. To give people access to the ombudsman, we have since 2005 established five regional offices with permanent staff in different parts of the country. Complaints investigators from the head and regional offices travel not less than 85 000 km per year to reach even the most remote communities in our country. This best practice we shared recently with Ms Colette Langlois, the Northwest Territories Ombud in Canada. We took seven matters to the High Court to enforce the human rights of persons who alleged their rights were violated. In all these matters, the court ruled in our favour. We popularised Constitution Day on 9 February. The first of its kind was on 9 February 2006 when we celebrated the day with the National Assembly under the theme: ‘Ensuring that the constitution remains a living document’. Last year, we celebrated the 30th anniversary with school learners under the theme: ‘The Namibian Constitution… 30 years on - Are we the Namibia we want to be?’. The appointment of the children’s advocate and a social worker strengthened the capacity of the office in dealing with children’s rights issues. The office enjoys since 2006 a status “A” accreditation from the Global Alliance of National Human Rights Institutions. I served as the President of the International Ombudsman Institution (I.O.I) from 2014 to 2016 and was awarded Honorary Life Membership of the I.O.I in 2016. The Namibian ombudsman institute is known throughout the world.


On the lowlights


It would be the non-responsiveness, i.e. failure to acknowledge and respond to enquiries of the Ombudsman is a systemic problem in the public service. It has a huge impact on our effectiveness – failure by the National Assembly (NA) to consider, examine and debate the reports of the ombudsman. The ombudsman is accountable to the National Assembly; the National Assembly represents the people, so the ombudsman is accountable to the people through the National Assembly. The National Assembly represents the final enforcement power of the Ombudsman. The freezing of vacancies and the slow process of filling vacancies also impacted the effectiveness of the ombudsman. The ombudsman does not have a budget – and is working under an outdated Ombudsman Act of 1990.


MA: There are some members of the public who still confuse the role played by the Ombudsman’s office and that of the Anti-Corruption Commission. Can you kindly clarify the mandates of the two institutions?

JW: For those who still confuse the roles of the ombudsman and the ACC, I wish to encourage them to read the legislation for a better understanding of our roles. Very briefly, the ombudsman is required to receive and investigate complaints of mal (bad) administration against the central, regional and local governments, state-owned enterprises and their employees, etc; violations of human rights, misappropriation (which in my opinion is theft) of public money and other property by officials – and the protection of the environment. The ACC deals with all forms of corruption; it is their mandate.


MA: IPPR recently suggested that the country establishes a commission on human rights and another one for environmental protection as constitutional bodies, while still having an Ombudsman handling reports of abuse of power. What do you make of such a proposal?

JW: In a wealthy country with a big population, it is ideal to have separate bodies. The question to be answered is whether we can afford a human rights commission, ombudsman, commission for the protection of the environment and ACC in our country, where the ACC is underfunded while the ombudsman has no budget? These four bodies will compete for resources. The Whistleblower Act and Witness Protection Act cannot be implemented due to a lack of resources. Still to be appointed is the information commission and staff after the promulgation of the Act. The list goes on. It would make better sense to strengthen the ombudsman’s office with resources, e.g. two deputy ombudsmen, an environmental expert, human rights education officer, a researcher, litigation unit, etc.


MA: Former deputy ombudsman Ephraim Kasuto earlier this year said the Office of the Ombudsman should be an autonomous body and not fall under the justice ministry as is the case. Do you think the current arrangement compromises the work of the ombudsman?

JW: The ombudsman enjoys constitutionally guaranteed independence, legal autonomy, and operational autonomy – but not financial autonomy. The historic link of the Office of the Ombudsman to the Ministry of Justice compromises its operations. This linkage will only be broken by the adoption of the new Ombudsman Bill, which is in the making for the past five years. I trust the Bill will be adopted soon after my departure. Since 2009, I have recommended amendments to the current Act.


MA: There have also been claims that government was not adequately funding the work of your office over the years. What do you have to say about this?

JW: I always maintain that we do what we can with what we receive, but we can do much better with more funding. We report every year in our annual reports how we utilised allocated resources.


MA: Your office has been at the forefront of ensuring that child-friendly jails are established throughout the country. Do you think the responsible ministry has made progress to ensure children are not detained in the same cells as adult offenders?

JW: In my opinion, the ministry was ill prepared for the implementation of the Child Care Protection Act and does not have the resources to establish child detention centres. While there are currently no such centres, the police must ensure children are not detained with adults; release them in the care of a guardian and our courts when dealing with children must ensure that the best interest of the child takes preference.


MA: The justice ministry has received the Repeal of Absolute Laws and the Abolishment of the Common Law Offences of Sodomy and Unnatural Sexual Offences’ report, which could pave way for the decriminalisation of sodomy. Public opinion has been divided on the issue. What is your take on this contentious issue?

JW: The apartheid regime prohibited love and sexual relationships between persons of colour or races through legislation. These laws are now repealed; the common law offence of sodomy and unnatural sexual offences survived. In the same sense, the common law offence of sodomy prohibits love and sexual relationships between consenting adults. Is it not a person’s choice whom to love and has a relationship with? These offences have no place in our constitutional democracy and should be decriminalised.


MA: Three candidates have been shortlisted for your position after only four applied for the position. There appears to be a lack of interest in the position, judging by the number of applications. What do you attribute this to?

JW: I do not want to speculate on the reasons persons are not interested in the job.


MA: Do you think there is sufficient political will to tackle corruption and rampant abuse of state resources at all levels of the government and private sector?

JW: I believe so, but with more political support, we will do much better. However, we must not look at government as the sole solution for the problem of corruption; we all must play our part.


MA: Lastly, what are your future plans?

JW: None, but I will go wherever the winds of life take me.


MA: Any parting thoughts?

JW: Being the ombudsman of Namibia was the most fulfiling and satisfying job I ever had. However, I am grateful to the Government of the Republic of Namibia for appointing me as ombudsman, for I have learnt to serve with joy. I am grateful for the mistakes I have made, for they taught me the most. I am grateful to all my critics, for they have kept me humble.

2021-07-23  Maria Amakali

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