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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
r! fundame tal rights and freedoms, abuse of power, unfair, harsh,
insensitive or disr.ourteous 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: |
| |
(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; |
| |
(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; |
| |
(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; |
| |
(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; |
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(c) |
to question any person; |
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(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 SubArticle
(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-ownersnip; |
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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. |