By: Hertha Ekandjo, Rudorf Iiyambo
NEFF member Kalimbo Ipumbu said he feels that instructions from the highest authorities drove the Ombudsman’s reasoning for declining to investigate President Hage Geingob.
NEFF last week submitted a complaint to the Ombudsman Basilius Dyakugha requesting his office to investigate Geingob’s involvement in the Phala Phala farm theft.
On Tuesday, Dyakugha said he would not investigate Geingob because the complaint’s wording refers to criminal charges that are not in the purview of his office.
“I, therefore, decline to investigate the complaint submitted by NEFF,” said Dyakugha.
“For purposes of this complaint, it is vital to share with the public the meaning of maladministration, because according to my reading, the complaint does not allege a violation of human rights, neither did it mention anything related to the environment,” said Dyakugha.
He added that the only possible category relevant to his mandate is that of maladministration.
According to Ombudsman, in normal circumstances, the Ombudsman should be one of the last defence available to citizens against the bureaucratic processes and malfeasance in public offices.
Dyakugha encourages NEFF to approach the relevant institutions they are accusing or complaining about and try to get a solution to their complaints or grievances.
He added that only when they have exhausted the available internal procedures and processes of those institutions should they approach his office if they still did not get a satisfactory explanation or solution to their complaints.
“But every case is handled on its merit, and this was the case in this instance,” explained Dyakugha.
Dyakugha said after carefully studying the NEFF complaint and trying to apply it to the three categories of the mandates of the Ombudsman in terms of the Namibian Constitution and the Ombudsman’s Act, the complaint does not allege bad or dishonest management by the President on the matter within the Namibian government.
“The heading and wording of the first paragraph indicate the nature of a criminal matter,” he explained.
He said that the area of the jurisdiction where such an alleged criminal matter had happened is in a foreign sovereign country, South Africa. Moreover, he said these allegations of alleged interrogation, abduction, and/or deportation. All of these are criminal, and the affidavit is attached and referred to as a subject of a criminal matter before a foreign court.
According to the Ombudsman, no adherence to the Extradition Act (Act No 11 of 1996) and the criminal procedure Act seems imaginary because the complainant does not mention the criminal case registered in Namibia, Namibian laws were not applied.
“Again, these are matters related to criminal justice,” said Dyukugha.
The Ombudsman stated that without necessarily invoking Section 4 (b) of the Ombudsman’s Act, in his opinion, the complaint submitted by NEFF on 8 June 2022 falls outside my mandate for two reasons.
The first reason being the words and concepts, including the language used in the complaint, was about breaking the criminal law.
Dyakugha said the second reason was the violation of the oath of office is one area in which he could not find a clear express provision in their laws.
“However, Article 29 of the Namibian Constitution might guide the issue,” he said.
Dyakugha explained that Ombudsman is an independent statutory body in Article 89 (2) of the Namibian Constitution.
He added that he acts and performs his duties subject to the Namibian Constitution and the law.
“The independence, impartiality, and confidentiality are the key features and strengths of the Ombudsman to do my work,” he said.
He continued by saying that this enables the Ombudsman to perform his functions and duties without fear, prejudice, or favour.
Kalimbo said: “I think, and we are still standing, that you didn’t respond independently as the main purpose of your office,” expressed Kalimbo.
Kalimbo said Dyakugha was supposed to see what transpired until the suspects were arrested in Namibia.
“You denying that you can not continue to investigate this case. It seems that there is an instruction from the highest authorities directing you not to investigate this case,” said Kalimbo.
Kalimbo said that it was that time that the Ombudsman looked into this case and to come out with a clear report saying that the President didn’t aid the President of South Africa.
Kalimbo stressed that it seems like they don’t need Ombudsman in Namibia.
He added that the Ombudsman seems to duplicate the Anti-Corruption Commission (ACC).
According to Kalimbo, it is a waste for anyone to submit a complaint to the office of the Ombudsman.
Meanwhile, lawyer Nafimane Alweendo argues that the Ombudsman does not know where his power starts and ends. He said according to the Ombudsman act 7 of 1990, the Ombudsman has the right to investigate all the government officials, including the President if they’re involved in any illegal doings.
“It’s like they don’t understand as the Ombudsman what they can and cannot do. The problem is that the Ombudsman has refused to look at the case and with no knowledge of what the case is about,” he said
He said that the letter that the Ombudsman issued does not show whether the Ombudsman is favouring the President. It only indicates that the office does not know their power and rights.
“By saying they only investigate things that concern human rights violations and the environment, section 3 of the constitution of Ombudsman Act stated that he can investigate any abuse of power by the President. Hence the Ombudsman has the power to investigate the President. It just shows that they don’t know how strong they are.”
