FACULTY OF COMMERCE, MANAGEMENT AND LAW

SCHOOL OF LAW
BACHELOR OF LAW HONOURS (64BLWS) FULL TIME- ONLINE

ALTERNATIVE DISPUTE RESOLUTION (L3501PA) ASSIGNMENT 2

2024 ACADEMIC YEAR

Student name Lovisa Ingatutala Mbulu

Student number 201306292
Email Address nalipite@gmail.com
Cell/Tell no +264 81 7340950
CODeL Centre Windhoek

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Table of Contents
Introduction .....................................................................................................................................3
Overview of Ombudsman in Namibia ............................................................................................3
Types of Ombudsman in Namibia ..................................................................................................4
Human Rights Ombudsman ................................................................................................4
Administrative Ombudsman ................................................................................................5
Environmental Ombudsman ................................................................................................7
The Children’s Advocate………………………………………………………………….7
Role in Resolving Disputes .............................................................................................................8
Mechanisms and Processes .............................................................................................................9
Mediation .............................................................................................................................9
Investigation .........................................................................................................................9
Recommendation of Remedies ..........................................................................................10
Challenges and Limitations............................................................................................................11
Conclusion .....................................................................................................................................12
Reference List ...............................................................................................................................14

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The Ombudsman's Gavel: A Symbol of Dispute Resolution in
Namibia

Introduction

In many societies, Ombudsmen play a crucial role in fostering fair and efficient dispute resolution.
These impartial figures act as neutral intermediaries, facilitating communication and guiding
individuals towards mutually agreeable solutions in disagreements.1 Namibia, with its
commitment to good governance enshrined in its constitution has established a unique
Ombudsman system.2 This system plays a significant role in ensuring a just and accessible system
for resolving disputes between citizens and various entities. To address these conflicts and ensure
fair and just outcomes, Namibia has established several types of Ombudsmen, which play a crucial
role in resolving disputes, promoting transparency, accountability, and good governance, and
safeguarding the rights and interests of individuals.

This essay explores the types of Ombudsmen found in Namibia and their significance in resolving
disputes between parties.

Overview of Ombudsman in Namibia

The Namibian Ombudsman serves as an independent and impartial public official, appointed by
the President upon recommendation from the Judicial Service Commission.3 The Ombudsman,
which mean a people’s representative in Swedish, have to be either a judge or someone in
possession of legal qualifications,4 to enable him with the ability to adequately investigate
complaints lodged by citizens against government agencies and, in some cases, private entities.
Their primary role is to address violations of fundamental rights and freedoms, as well as matters
concerning the administration of all government organs.5

1
Mickley, A. (2005). “Ombudsman mediation in Namibia”. The International Ombudsman Journal, 19(2), pp. 91-97.
2
Himms, E. & A. Schmidt. (2023). The Namibian Constitution. A comprehensive guide. The Netherlands: Kluwer Law
International B.V, pp. 217-220.
3
Article 90(1) of the Namibia Constitution.
4
(ibid.: 89(4)).
5
(ibid.: 91(a)- (d)).

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Operating as a neutral third party, the Ombudsman facilitates fairness and accountability within
the system. They have the authority to investigate complaints thoroughly and can employ various
measures to resolve disputes, including seeking compromises, bringing issues to the attention of
authorities, referring matters to the courts, or initiating judicial review.6

Despite their significant responsibilities, the Ombudsman's recommendations are not binding. 7
This has led to discussions about the effectiveness of their role, with some suggesting that their
influence may be more symbolic than concrete.8 However, their independence from all branches
of government—without interference from the executive, legislative, or other entities—ensures
they can perform their duties objectively. While they are empowered to investigate independently,
all state organs are mandated to cooperate with the Ombudsman when necessary, as outlined in
Chapter 10 of the constitution and the Ombudsman Act.

Types of Ombudsman in Namibia

Human Rights Ombudsman

The Human Rights Ombudsman focus on safeguarding and promoting human rights principles
enshrined in the constitution and international conventions. They investigate complaints related to
human rights violations by both state and non-state actors. Article 25(2)9 make provision for the
aggrieved persons whose fundamental rights or freedom guaranteed by the Constitution has been
infringed or threatened to approach a competent Court for enforcement or protection of such a
right or freedom, and the Ombudsman that will provide them with such legal assistance or advice
as they require.

In the case of Pienaar v Minister of Safety and Security and Others,10 Mr. Pienaar's repeated non-
appearance in court raised concerns about potential infringements on his right to access to court.
Consequently, Damaseb instructed the Ombudsman to investigate the matter, emphasizing the
importance of ensuring Mr. Pienaar's access to justice. In 2014, the Ombudsman's report concludes
no wrongdoing on the part of the police officials, despite Pienaar's endless claims of authorities

6
Article 91(c)(aa)- (ff).
7
Ndumbu, R. (2021). “Role and Responsibilities of the Ombudsman”. The Institute for Public Policy Research, para
7.
8
(ibid.).
9
The Constitution of the Republic of Namibia.
10
Pienaar v Minister of Safety and Security and Others 2012 NA 317 HC, para 3 and 5.

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failing to take him to court. The court highlighted the importance of securing the applicant’s
presence in court but found his claim unsubstantiated.11

In another instance, an inmate in Opuwo Police custody was denied permission to go sit for his
NAMCOL examination despite being a registered NAMCOL student. 12 Upon receiving the
inmate's complaint, the Ombudsman intervened, reminding the Station Commander of the
detainee's right to education, even while in custody and suspected of a crime. Subsequently, the
Station Commander agreed to allocate a study room for the inmate and make arrangements for him
to be escorted to the examination venue.13 As a result of the Ombudsman's intervention, the
detainee was able to prepare for and write his exams, resolving the issue satisfactorily.

Administrative Ombudsman

The Administrative Ombudsman address complaints concerning administrative practices within

government bodies. Their primary objective is to uphold standards of fairness, transparency, and
efficiency in administrative procedures across various government institutions. Of particular
concern are cases of maladministration, which constitute the majority of complaints received by
the Administrative Ombudsman. In 2021 alone, a total of 1482 cases of maladministration were
reported in Namibia.14 This significant number underscores the pervasive challenges faced in the
public sector concerning service delivery and administrative conduct.

These complaints range from instances of bureaucratic inefficiency to allegations of unfair

treatment and procedural irregularities. They encompass a wide spectrum of grievances, including
delays in service provision, arbitrary decision-making, and breaches of procedural fairness.
Addressing these complaints effectively is essential for improving public trust in government
institutions and enhancing the overall quality of governance in Namibia.

Furthermore, the ombudsman is tasked to investigate complaints pertaining lack of balanced

structure and equitable access to recruitment processes across various public sectors such as the
defence force, the police, and correctional services. Additionally, they are tasked with ensuring
fair administration within this organisations. An example of unfair treatment, discrimination and

11
Pienaar v The Prosecutor-General 2014 NA 320 HCMD.
12
Ombudsman’s Annual Report 2021-2022, p 22.
13
(ibid.).
14
(ibid.: 35).

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improper procedure was when the Cabinet passed a resolution that provides for the appointment
of children of liberation struggle (CLS) in entry-level positions in government ministries,
bypassing the rules regarding recruitment in government agencies.15 Volunteer cleaners at the
Ministry of Health and Social Services (MOHSS) felt extremely disgruntled and discriminated
against by the special treatment given to the CLS, and requested the office of Ombudsman to
intervene in this matter.16

The Ombudsman, in line with the Act17 wrote to Cabinet, seeking an end to preferential treatment
for children of the liberation struggle in government employment as there is no legal basis that
enables the Cabinet to engage in discriminatory employment practices with the intention of
favouring children of the liberation struggle at the expense of other citizens.18 Upon receiving no
response from the Cabinet, the Ombudsman escalated the issue to court. Subsequently, the High
Court ruled to cease this unjust practice, declaring it unlawful as it unfairly deprives other
Namibian youth of equal employment opportunities.19

Additionally, when there are other complaints from citizens regarding delays in the processing of
government documents, such as identity documents or permits, for example, the Administrative
Ombudsman would investigate such cases and the reasons behind the delays. They may identify
bottlenecks in the administrative process and recommend measures to streamline procedures and
improve service delivery. In one instance, a farmer filed a complaint alleging that the Ministry of
Environment and Tourism (MET) personnel failed to conduct an inspection of her farm after she
submitted an application for a hunt able game permit in March 2021.20 The hunting season passed
without the Ministry inspecting her farm. Following the Ombudsman’s intervention, the farm was
inspected, and a hunting permit was issued September 2021.

15
Ombudsman’s Annual Report (2021:18).
16
(ibid.).
17
Section 3(2)(a) &(b) r/w section 5 Ombudsman Act.
18
(ibid.). see also The Namibian. (2020). “Ombudsman weighs in on struggle kids”. The Namibian.
19
(ibid.).
20
(ibid.:35).

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Environmental Ombudsman

The Environmental Ombudsman in Namibia is dedicated to protecting the environment and natural
resources, as well as advocating for sustainable development practices.21 They address complaints
related to environmental degradation, pollution, and unsustainable resource management.

One of the responsibilities of the Environmental Ombudsman is to conduct inspections of both

solid and liquid waste management sites. During these inspections, the Ombudsman investigates
any issues of concern and subsequently compiles recommendation reports for the relevant
authority. These reports are intended for appraisal and implementation of improvements in waste
management practices.

In 2021, the Ombudsman visited sites in Otjozondjupa, Ohangwena and Zambezi regions. 22 They
assessed the infrastructure and operations of purification plants, sewage pump stations, and waste
management sites in the said regions. They evaluated the condition of the facilities, to ensure
compliance with safety and environmental regulations, and identified areas in need of
improvement. Additionally, they addressed ongoing issues with solid waste management and
assessed the overall effectiveness of waste treatment and disposal processes.

The Children’s Advocate

Apart from the three existing types of Ombudsman in Namibia, the implementation of the Child
Care and Protection Act23 has allowed for the appointment of a Children's Advocate within the
Office of the Ombudsman, to specifically tackle matters impacting Namibian children.24
Children’s Advocate fall under Human Rights Ombudsman and their main functions are to
examine grievances concerning the services rendered to children as per the laws of the Namibian
constitution and instances where children's rights have been infringed upon. They further oversee
the execution of the Child Care and Protection Act and other legislation pertaining to children and

21
Article 91(d).
22
Ombudsman's Annual Report (2021:37-39).
23
No 3 of 2015.
24
The Official Website for the Office of the Ombudsman, Namibia. Available at
https://ombudsman.org.na/childrens-advocate/; last accessed on 17 April 2024.

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promote awareness about the Child Care and Protection Act and broader issues regarding children's
rights and duties.25

Between January and December of 2021, the children Ombudsman visited Various Residential
Child Care Facilities (RCCFs) in Erongo, Kavango East and West, Zambezi, Kunene,
Otjozondjupa, and Khomas regions, to inspect compliance with the National Minimum Standards
for RCCFs as determined by the Ministry of Gender Equality and Child Welfare, and the minimum
standards for child care facilities as provided for in section 71 of the Child Care and Protection
Act, which showed challenges faced by caretakers in providing adequate services due to resource
constraints and lack of regulatory oversight.26

Role in Resolving Disputes

The Human Rights Ombudsman focuses on safeguarding and promoting human rights principles
enshrined in the constitution and international conventions. In the case of Pienaar v Minister of
Safety and Security27, the Ombudsman investigated concerns about potential infringements on the
right to access court. Although the Ombudsman's report concluded no wrongdoing on the part of
the police officials, the intervention highlighted the importance of ensuring access to justice.

The Administrative Ombudsman addresses complaints concerning administrative practices within

government bodies, ensuring fairness and efficiency. In the case of discriminatory employment
practices favouring children of the liberation struggle, the Ombudsman wrote to the Cabinet
seeking an end to preferential treatment. Subsequently, the High Court ruled to cease this unjust
practice, illustrating the effectiveness of the Ombudsman's intervention in resolving disputes.

The Environmental Ombudsman is dedicated to protecting the environment and advocating for
sustainable development practices. Through inspections of waste management sites, the
Ombudsman identifies issues and recommends improvements.

The Children's Advocate specifically tackles matters impacting Namibian children, ensuring their
rights and welfare are protected. Visitations to Residential Child Care Facilities revealed
challenges faced by caretakers in providing adequate services due to resource constraints. The

25
(ibid.).
26
Ombudsman's Annual Report (2021:26-29).
27
Pienaar v Minister of Safety and Security, at 2.

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intervention by the Children's Ombudsman highlighted these issues, prompting efforts to improve
oversight and support for children in residential care.

Each type of Ombudsman contributes to resolving disputes by investigating complaints,

advocating for rights, and facilitating dialogue between parties. Through their interventions and
recommendations, they addressed grievances, promote accountability, and ultimately foster
positive change in Namibian society.

Mechanisms and Processes

Ombudsmen employ various mechanisms and processes to effectively resolve disputes and address
grievances. Three key components in their approach are mediation, investigation, and
recommendation of remedies.

Mediation

Ombudsmen often act as mediators between complainants and the entities or individuals against
whom complaints are made. They facilitate communication and negotiation between parties to
reach a mutually acceptable resolution and further conduct informal meetings or hearings where
both parties can present their perspectives and concerns. In one instance, on May 17, 2021, the
Ombudsman convened a meeting with a delegation of the CLS. Following a discussion where the
CLS shared their concerns and challenges, through a public hearing. The purpose was to provide
a platform for aggrieved individuals to express their grievances, experiences, expectations, and
frustrations to the panel, which included the Ombudsman and staff members.28

Through mediation, the Ombudsman aim to promote understanding, facilitate compromise, and
achieve a satisfactory resolution without the need for formal legal proceedings. In one instance, a
mother lodged a complaint with the office of the Ombudsman, expressing frustration over the
prolonged custody application process in the children's court. The matter was referred to mediation
by social workers and the matter was resolved amicably.29

Investigation

28
(ibid.:18).
29
The Official Website for the Office of the Ombudsman, Namibia. Available at
https://ombudsman.org.na/childrens-advocate/; last accessed on 17 April 2024.

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Ombudsman have the authority to conduct thorough investigations into complaints, gathering
evidence and information from relevant parties, by reviewing documents, interviewing witnesses,
and visiting relevant locations to gather first-hand information.30 The aim is to uncover facts,
assess the validity of complaints, and determine whether any laws or regulations have been
violated. In the case of Pienaar v Minister of Safety and Security read with Pienaar v The
Prosecutor-General31, Damaseb requested the office of Ombudsman to investigate the reasons
behind Mr Pienaar nonappearance in court.

The Ombudsman conducts objective and impartial investigations, ensuring a fair and thorough
examination of the issues at hand. This independence is maintained by not being subject to
direction from ministers, government officials, complainants, or the agencies and officials under
investigation32 and article 89 which state that:33

No member of the Cabinet or the legislature or any person shall interfere with the
Ombudsman in the exercise of his or her func-tions 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.

Recommendation of Remedies

Based on the findings of their investigations and mediation efforts, Ombudsmen provide
recommendations for resolving disputes and addressing grievances. These recommendations may
include specific actions to be taken by the parties involved, such as corrective measures, policy
changes, or compensation for damages.

In the case involving the CLS, the Ombudsman recommended that government ensures effective
consultation, participation, and representation of CLS on the basis of free, prior, and informed
consent in all decision-making processes, following the principle of "nothing about us without us"
and other alternatives such as assisting CLS in registering companies to apply for fishing rights

30
Section 4(1).
31
Pienaar v The Prosecutor-General 2014 NA 320 HCMD, para y and z(aa).
32
The Official Website for the Office of the Ombudsman.
33
Article 89(3).

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under the Marine Resources Act 27 of 2007, instead of giving them jobs in the government at the
expense of other citizens.34

Ombudsmen may issue formal reports outlining their findings and recommendations, which are
typically shared with the relevant authorities or entities. While Ombudsmen's recommendations
are non-binding, they carry significant weight and are often respected and implemented by the
parties involved.

For example, a complainant alleged that the Ministry of Justice wrongly deposited money into her
previous bank account, despite providing updated banking details. After two weeks without
resolution, the complainant sought intervention from the office of the Ombudsman. Upon inquiry,
the bank promptly reversed the funds to the Ministry of Justice within two days. Subsequently, the
Ministry transferred the funds to the correct bank account, demonstrating the effectiveness of our
intervention in resolving the issue.35

Challenges and Limitations

One of the main challenges faced by the office of the Ombudsman is failure or disregard to respond
to the Ombudsman's inquiries within the public service, especially from Ministers, Executive
Directors, and senior officials. Given that the Ombudsman's office typically operates within a 90-
day turnaround time for complaints, cooperation from all stakeholders is crucial for effective
resolution. However, the lack of feedback within this timeframe impedes the Ombudsman's ability
to fulfil its mandate.36

Another issue hindering the Ombudsman’s work is limited resources and its dependency on
Ministry of Justice. Without its own dedicated budget, the Ombudsman's office faces constraints
in funding crucial activities beyond basic operational needs.37 This dependency on the Ministry of
Justice for financial support limits the Ombudsman's autonomy and flexibility in addressing
emerging issues or conducting comprehensive investigations.

34
Ombudsman's Annual Report (2021:19).
35
(ibid.:34).
36
(ibid.:19).
37
(ibid.:13).

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Moreover, the personal and financial dependence on the Department of Justice make it extra
difficult for Ombudsman to effectively perform most of its duties as the majority of complaints
received by the Ombudsman's office are about the Department of Justice.38 This is indicated in the
2012 report of which out of a total of 1925 complaints, 384 were related to the Department of
Justice, 39 placing it at the top of the list of complaints, followed by the police.40

The powers of the Ombudsman, like any other public entity, are circumscribed within the confines
of the constitution, the principle of separation of powers, and the rule of law.41 Consequently, the
Ombudsman is precluded from investigating and overturning decisions made by elected officials
or establishing public policy.42 Additionally, the Ombudsman cannot duplicate the investigative
efforts of other bodies or mechanisms tasked with ensuring accountability.

In The Prosecutor-General v The Ombudsman,43 The Court highlighted that the Ombudsman is
restricted from handling complaints concerning judges and other judicial officers presiding in
courts, except in matters of administrative nature.44 Moreover, the Ombudsman cannot decide
whether a fundamental right of a person has been infringed as the Constitution only vests him or
her with an obligation to provide assistance to a person who claims that his or her fundamental
rights or freedoms have been infringed.45

These limitations serve to delineate the Ombudsman's jurisdictional boundaries and uphold the
principles of fairness, impartiality, and legality in its operations.

Conclusion

This essay has explored the vital role played by Ombudsman in Namibia's justice system, focusing
on their significance in resolving disputes and promoting justice. Ombudsman serve as impartial
intermediaries, facilitating communication and guiding parties towards mutually agreeable
solutions. With Namibia's commitment to good governance, the establishment of various types of

38
Mickley (2005:109).
39
The Namibian. (2021). “Ombudsman Walters claims 80% success”. The Namibian.
40
Karuuombe, M. (2023). “Ombudsman records 579 cases against police”. The Namibian.
41
Article 89(2).
42
Section 3(6) Ombudsman Act.
43
The Prosecutor-General v The Ombudsman 2020 NA 119 HCMD, pp15-16.
44
Article 91(b).
45
The Prosecutor-General v The Ombudsman, at 16.

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Ombudsman underscores the nation's dedication to transparency, accountability, and the protection
of individual rights.

The Human Rights Ombudsman safeguards fundamental rights and freedoms, ensuring access to
justice and addressing human rights violations. Additionally, the Children's Advocate focuses
specifically on matters impacting Namibian children, ensuring their rights and welfare are
protected. The Administrative Ombudsman upholds fairness and efficiency in administrative
practices, addressing cases of maladministration and ensuring equitable treatment in government
institutions. The Environmental Ombudsman advocates for environmental protection and
sustainable development, addressing issues of environmental degradation and pollution.

Through mechanisms such as mediation, investigation, and recommendation of remedies,

Ombudsman effectively address grievances and promote accountability. Despite challenges such
as limited resources and dependency on government entities, Ombudsman remain steadfast in their
commitment to impartiality and justice.

In closing, continued support for Ombudsman is essential for safeguarding citizens' rights and
ensuring good governance in Namibia. By upholding the principles of fairness, transparency, and
accountability, Ombudsman contribute significantly to a just and equitable society. It is imperative
that stakeholders recognize the importance of Ombudsman's role and provide the necessary
support to strengthen their effectiveness in serving the people of Namibia.

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Reference List

Articles

Karuuombe, M. (2023). “Ombudsman records 579 cases against police”. The Namibian.

Mickley, A. (2005). “Ombudsman mediation in Namibia”. The International Ombudsman

Journal, 19(2), pp. 91-97.

Ndumbu, R. (2021). “Role and Responsibilities of the Ombudsman”. The Institute for Public
Policy Research, para 7.

Ombudsman's Annual Report 2021-2022, p 22.

The Namibian. (2021). “Ombudsman Walters claims 80% success”. The Namibian.

The Namibian. (2020). “Ombudsman weighs in on struggle kids”. The Namibian.

Books

Himms, E. & A. Schmidt. (2023). The Namibian Constitution. A comprehensive guide. The
Netherlands: Kluwer Law International B.V.

Case law

Pienaar v Minister of Safety and Security and Others 2012 NA 317 HC

Pienaar v The Prosecutor-General 2014 NA 320 HCMD

The Prosecutor-General v The Ombudsman 2020 NA 119 HCMD

Statutes

Child Care and Protection Act 3 of 2015.

Ombudsman Act 7 of 1990.

The Constitution of the Republic of Namibia, chapter 10.

Websites

The Official Website for the Office of the Ombudsman, Namibia. Available at
https://ombudsman.org.na/childrens-advocate/; last accessed on 17 April 2024

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