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CHAPTER 10
The Ombudsman
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| Article 89 - Establishment and Independence |
| (1) |
There shall be an Ombudsman,
who shall have the powers and functions set out in this Constitution. |
| (2) |
The Ombudsman shall be independent
and subject only to this Constitution and the law. |
| (3) |
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 and 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. |
| (4) |
The Ombudsman shall either
be a Judge of Namibia, or a person possessing the legal qualifications
which would entitle him or her to practise in all the Courts of Namibia. |
Article
90 - Appointment and Term of Office |
| (1) |
The Ombudsman shall be appointed
by Proclamation by the President on the recommendation of the Judicial
Service Commission. |
| (2) |
The Ombudsman shall hold office
until the age of sixty-five (65) but the President may extend the retiring
age of any Ombudsman to seventy (70). |
Article
91 - Functions |
| The functions of the Ombudsman
shall be defined and prescribed by an Act of Parliament and shall include
the following: |
| (a) |
the duty to investigate complaints
concerning alleged or apparent instances of violations of fundamental
rights and freedoms, abuse of power, unfair, harsh, insensitive or discourteous
treatment of an inhabitant of Namibia by an official in the employ of
any organ of Government (whether central or local), manifest injustice,
or corruption or conduct by such official which would properly be regarded
as unlawful, oppressive or unfair in a democratic society; |
| (b) |
the duty to investigate complaints
concerning the functioning of the Public Service Commission, administrative
organs of the State, the defence force, the police force and the prison
service in so far as such complaints relate to the failure to achieve
a balanced structuring of such services or equal access by all to the
recruitment of such services or fair administration in relation to such
services; |
| (c) |
the duty to investigate complaints
concerning the over-utilization 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; |
| (d) |
the duty to investigate complaints
concerning practices and actions by persons, enterprises and other private
institutions where such complaints allege that violations of fundamental
rights and freedoms under this Constitution have taken place; |
| (e) |
the duty and power to take
appropriate action to call for the remedying, correction and reversal
of instances specified in the preceding Sub-Articles through such means
as are fair, proper and effective, including: |
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(aa) |
negotiation and compromise between the
parties concerned; |
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(bb) |
causing the complaint and his or her finding
thereon to be reported to the superior of an offending person; |
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(cc) |
referring the matter to the Prosecutor-General; |
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(dd) |
bringing proceedings in a competent Court
for an interdict or some other suitable remedy to secure the termination
of the offending action or conduct, or the abandonment or alteration of
the offending procedures; |
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(ee) |
bringing proceedings to interdict the enforcement
of such legislation or regulation by challenging its validity if the offending
action or conduct is sought to be justified by subordinate legislation
or regulation which is grossly unreasonable or otherwise ultra vires; |
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(ff) |
reviewing such laws as were in operation
before the date of 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; |
| (f) |
the duty to investigate vigorously
all instances of alleged or suspected corruption and the misappropriation
of public monies by officials and to take appropriate steps, including
reports to the Prosecutor-General and the Auditor-General pursuant thereto; |
| (g) |
the duty to report annually
to the National Assembly on the exercise of his or her powers and functions. |
Article
92 - Powers of Investigation |
| The powers of the Ombudsman
shall be defined by Act of Parliament and shall include the power: |
| (a) |
to issue subpoenas
requiring the attendance of any person before the Ombudsman and the production
of any document or record relevant to any investigation by the Ombudsman; |
| (b) |
to cause any person
contemptuous of any such subpoena to be prosecuted before a competent
Court; |
| (c) |
to question any
person; |
| (d) |
to require any
person to cooperate with the Ombudsman and to disclose truthfully and
frankly any information within his or her knowledge relevant to any investigation
of the Ombudsman. |
Article
93 - Meaning of "Official" |
| For the purposes of this Chapter
the word "official" shall, unless the context otherwise indicates,
include any elected or appointed official or employee of any organ of
the central or local Government, any official of a para-statal enterprise
owned or managed or controlled by the State, or in which the State or
the Government has substantial interest, or any officer of the defence
force, the police force or the prison service, but shall not include a
Judge of the Supreme Court or the High Court or, in so far as a complaint
concerns the performance of a judicial function, any other judicial officer. |
Article
94 - Removal from Office |
| (1) |
The Ombudsman may be removed
from office before the expiry of his or her term of office by the President
acting on the recommendation of the Judicial Service Commission. |
| (2) |
The Ombudsman may only be removed
from office on the ground of mental incapacity or for gross misconduct,
and in accordance with the provisions of Sub-Article (3) hereof. |
| (3) |
The Judicial Service Commission
shall investigate whether or not the Ombudsman shall be removed from office
on the grounds referred to in Sub Article (2) hereof and, if it decides
that the Ombudsman shall be removed, it shall inform the President of
its recommendation. |
| (4) |
While investigations are being
carried out into the necessity of the removal of the Ombudsman in terms
of this Article, the President may, on the recommendation of the Judicial
Service Commission and, pending the outcome of such investigations and
recommendation, suspend the Ombudsman from office. |
|
CHAPTER 11
Principles of State Policy
|
Article 95 - Promotion of
the Welfare of the People |
| The
State shall actively promote and maintain the welfare of the people by
adopting, inter alia, policies aimed at the following: |
| (a) |
enactment
of legislation to ensure equality of opportunity for women, to enable
them to participate fully in all spheres of Namibian society; in particular,
the Government shall ensure the implementation of the principle of non-discrimination
in remuneration of men and women; further, the Government shall seek,
through appropriate legislation, to provide maternity and related benefits
for women; |
| (b) |
enactment
of legislation to ensure that the health and strength of the workers,
men and women, and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter vocations unsuited
to their age and strength; |
| (c) |
active
encouragement of the formation of independent trade unions to protect
workers' rights and interests, and to promote sound labour relations and
fair employment practices; |
| (d) |
membership
of the International Labour Organisation (ILO) and, where possible, adherence
to and action in accordance with the international Conventions and Recommendations
of the ILO; |
| (e) |
ensurance
that every citizen has a right to fair and reasonable access to public
facilities and services in accordance with the law; |
| (f) |
ensurance
that senior citizens are entitled to and do receive a regular pension
adequate for the maintenance of a decent standard of living and the enjoyment
of social and cultural opportunities; |
| (g) |
enactment
of legislation to ensure that the unemployed, the incapacitated, the indigent
and the disadvantaged are accorded such social benefits and amenities
as are determined by Parliament to be just and affordable with due regard
to the resources of the State; |
| (h) |
a legal
system seeking to promote justice on the basis of equal opportunity by
providing free legal aid in defined cases with due regard to the resources
of the State; |
| (i) |
ensurance
that workers are paid a living wage adequate for the maintenance of a
decent standard of living and the enjoyment of social and cultural opportunities; |
| (j) |
consistent
planning to raise and maintain an acceptable level of nutrition and standard
of living of the Namibian people and to improve public health; |
| (k) |
encouragement
of the mass of the population through education and other activities and
through their organisations to influence Government policy by debating
its decisions; |
| (I) |
maintenance
of ecosystems, essential ecological processes and biological diversity
of Namibia and utilization of living natural resources on a sustainable
basis for the benefit of all Namibians, both present and future; in particular,
the Government shall provide measures against the dumping or recycling
of foreign nuclear and toxic waste on Namibian territory. |
Article 96 - Foreign Relations |
| The
State shall endeavour to ensure that in its international relations it: |
| (a) |
adopts
and maintains a policy of non-alignment; |
| (b) |
promotes
international co-operation, peace and security; |
| (c) |
creates
and maintains just and mutually beneficial relations among nations; |
| (d) |
fosters
respect for international law and treaty obligations; |
| (e) |
encourages
the settlement of international disputes by peaceful means. |
Article 97 - Asylum |
| The
State shall, where it is reasonable to do so, grant asylum to persons
who reasonably fear persecution on the ground of their political beliefs,
race, religion or membership of a particular social group. |
Article 98 - Principles of
Economic Order |
| (1) |
The
economic order of Namibia shall be based on the principles of a mixed
economy with the objective of securing economic growth, prosperity and
a life of human dignity for all Namibians. |
| (2) |
The
Namibian economy shall be based, inter alia, on the following forms of
ownership: |
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(a) |
public; |
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(b) |
private; |
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(c) |
joint public-private; |
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(d) |
cc-operative; |
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(e) |
co-ownership; |
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(f) |
small-scale family. |
Article 99 - Foreign Investments |
| Foreign
investments shall be encouraged within Namibia subject to the provisions
of an Investment Code to be adopted by Parliament. |
Article 100 - Sovereign
Ownership of Natural Resources |
| Land,
water and natural resources below and above the surface of the land and
in the continental shelf and within the territorial waters and the exclusive
economic zone of Namibia shall belong to the State if they are not otherwise
lawfully owned. |
Article 101 - Application
of the Principles contained in this Chapter |
| The
principles of state policy contained in this Chapter shall not of and
by themselves be legally enforceable by any Court, but shall nevertheless
guide the Government in making and applying laws to give effect to the
fundamental objectives of the said principles. The Courts are entitled
to have regard to the said principles in interpreting any laws based on
them. |