Simon Kanepolo Amunime
The separation of powers doctrine, a central tenet of Namibian constitutional law, entails the provision of checks and balances between the three branches of government.
These checks and balances were constitutional measures, aimed at strengthening our democracy. Alongside these measures, various institutions were set out in chapter 10 of the constitution as additional checks on government power. These institutions were created to be independent, impartial bodies to keep the government accountable. They are essential in the democracy of our country, which is characterised by a history of corruption, oppression and lack of accountability. They assist organs of state in adhering to our constitutional dispensation. The Chapter 10 institutions refer to a group of organisations established in terms of Chapter 10 of the Namibian Constitution to guard democracy. The institutions are: Office of the Ombudsman, Anti-Corruption Commission (ACC) and the Electoral Commission of Namibia (ECN).
These institutions must be independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.
ACC is established as an administrative and legislative measure necessary to prevent and combat corruption, in which it is guided by an Act of Parliament, with its powers and functions provided for in such Act, which shall be an independent. However, the agency has been characterised by incompetence throughout the 15 years leadership – and clearly the commission has retreated and become an intimate partner of the corrupt elites and the rich.
Office of the Ombudsman
The Ombudsman shall be independent and subject only to this Constitution and the law, and no member of the Cabinet or the Legislature or any other person shall interfere with the Ombudsman in the exercise of his or her functions. All organs of the State shall accord such assistance as may be needed for the protection of the independence, dignity and effectiveness of the Ombudsman.
Amongst others, this office has constitutional duties to investigate complaints concerning alleged or apparent instances of violations of fundamental rights and freedoms; abuse of power; unfair, harsh, and insensitive or discourteous treatment of an inhabitant of Namibia by an official in the employ of any organ of government (whether central or local).
Injustice or conduct by such official would properly be regarded as unlawful, oppressive or unfair in a democratic society. However, there are public offices such as that of the Labour Commissioner that continue to violate fundamental rights of citizens in establishing labour unions).
Another duty is to investigate complaints concerning the over-utilisation of living natural resources, the irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems and failure to protect the beauty and character of Namibia. Amidst this, there are cases of the Fishrot, sand mining and Phosphate mining, spearhead by powerful politicians but this institution has been absent on those matters. Moreover, the institution’s duty is to review such laws as were in operation before the independence, in order to ascertain whether they violate the letter or the spirit of this Constitution and to make consequential recommendations to the President, the Cabinet or the Attorney General for appropriate action following thereupon. Sadly, we still have discriminatory Apartheid laws such as the Squatters proclamation AG of 95 and the Veterinary cordon fence (Redline) in existence, oppressing black, without interventions from this office. Also, its duty is to investigate vigorously all instances of alleged or suspected misappropriation of public monies by officials and to take appropriate steps, including reports to the Prosecutor General and the Auditor General pursuant thereto. Regrettably, we have not seen the role of this office in public matters, such as the looting of GIPF, KORA money and the SME Bank, and squandering of public money by institutions such as NSFAF and many others.
The Ombudsman is an important constitutional office. Therefore, the importance of this office cannot be overemphasised, particularly when abuse of power by public representatives has reached unprecedented levels.
This agency shall be the exclusive body to direct, supervise, manage and control the conduct of elections and referenda, subject to the Constitution and an Act of Parliament, which define its powers, functions and duties.
The Electoral Commission of Namibia shall be an independent, transparent and impartial body and shall consist of five commissioners, including the chairperson, appointed by the President with the approval of the National Assembly, and such commissioners shall be entitled to serve for a five-year term. However, no commissioner shall serve more than two (2) terms as per the new amendments.
Amongst its functions is the exclusive authority to direct, supervise, manage and control in a fair and impartial manner and without fear, favour or prejudice any elections and referenda under the Act. However, we have witnessed the ECN violating its own Act by previously conducting elections with EVM machines without paper trails, which was declared illegal by the high Court of Namibia in 2019).
ECN must exercise and perform its powers and functions, subject to section 2(3), independent of any direction or interference by any other authority or any person. Unfortunately, we still have a legal dispute on members of parliament from the official opposition challenging ECN for wrongly authorising the swearing of a post-election gazetted list in National Assembly.
The Commission has further powers and functions to supervise, direct and control the registration of voters for the purposes of any election or referendum. However, we have ECN that had decided illegally to suspend the provision of continuous voter registration, the violation of the Regional Council Act & Electoral Act of 2014. While legally, the Electoral Commission of Namibia should implement a continuous voters registration role and not only during elections.
In conclusion, noting that the incumbents at the Ombudsman and Anti-Corruption Commission have failed in fully executing their constitutional mandates and powers, and them having held office since their inception is a cause for failure and weakening of these institutions. It is, therefore, safe to conclude that too much of anything is unhealthy; the two gentlemens have overstayed their welcome and when self-interest supersedes public service, society collapses under the weight of corruption.