Namibia 1990 Constitution (reviewed 2014)

CHAPTER 10. The Ombudsman

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:

1. 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 conduct by such official which would properly be regarded as unlawful, oppressive or unfair in a democratic society;
2. 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 correctional 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;
3. 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;
4. 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;
5. 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:
   1. negotiation and compromise between the parties concerned;
   2. causing the complaint and his or her finding thereon to be reported to the superior of an offending person;
   3. referring the matter to the Prosecutor-General;
   4. 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;
   5. 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;
   6. 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;
6. the duty 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;
7. 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:

1. 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;
2. to cause any person contemptuous of any such subpoena to be prosecuted before a competent Court;
3. to question any person;
4. 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 correctional 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. If the Judicial Service Commission considers that the question of removing the Ombudsman under this Article ought to be investigated it shall establish a tribunal which –
   1. shall consist of a Chairperson and not less than two other members, who hold or have held judicial office;
   2. shall enquire into the matter and report on the facts thereof to the Judicial Service Commission; and
   3. if after considering that report, the Judicial Service Commission, after due deliberation, recommends that the President removes the Ombudsman for any reason referred to in Sub-Article (2), the President must remove the Ombudsman from office.

CHAPTER 10A. ANTI-CORRUPTION MEASURES

Article 94A. Anti-Corruption Measures

1. The State shall put in place administrative and legislative measures necessary to prevent and combat corruption.
2. There shall be established by an Act of Parliament an Anti-Corruption Commission with its powers and functions provided for in such Act.
3. The Anti-Corruption Commission shall be an independent and impartial body.
4. The Anti-Corruption Commission shall consist of a Director-General, a Deputy Director-General and other staff members of the Commission.
5. The National Assembly shall appoint the Director-General of the Anti-Corruption Commission and the Deputy Director-General upon nomination by the President.
6. The Director-General of the Anti-Corruption Commission and the Deputy Director-General shall be appointed for a period of five (5) years and their qualifications for appointment and conditions and termination of service shall be determined in accordance with an Act of Parliament.

CHAPTER 10B. ELECTORAL COMMISSION OF NAMIBIA

Article 94B. Electoral Commission of Namibia

1. There shall be an Electoral Commission of Namibia which shall be the exclusive body to direct, supervise, manage and control the conduct of elections and referenda, subject to this Constitution, and an Act of Parliament shall further define its powers, functions and duties.
2. The Electoral Commission of Namibia shall be an independent, transparent and impartial body.
3. The Electoral Commission of Namibia 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 (5) year term: Provided that no Commissioner shall serve more than two (2) terms.
4. Subject to Sub-Article (3), the Chairperson shall serve in a full-time capacity for a term of five (5) years and shall be eligible for reappointment.
5. The depository of the records, minutes, documents of the Electoral Commission of Namibia, as well as the electoral and referenda materials shall be the Chief Electoral and Referenda Officer.
6. The qualifications for appointment, conditions and termination of service for the Chairperson, Commissioners and the Chief Electoral and Referenda Officer shall be determined in accordance with an Act of Parliament.