An Overview of the Principle of the “Independence” of the Ombudsman in South Africa and Namibia

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Author: Nomthandazo Ntlama
• Citation: (2014) 25 Stell LR 595
• Pages: 595-611
• Date: 16 August 2019

595

AN OVERVIEW OF THE PRINCIPLE OF THE

“INDEPENDENCE” OF THE OMBUDSMAN IN

SOUTH AFRICA AND NAMIBIA

Nomthandazo Ntlama

BJuris LLB LLM LLD

Associate Professor of Public Law

School of Law, College of Law and Management Studies, University of KwaZulu-Natal

1 Introduction

The institut ion of the Ombudsman has long been est ablished, and its

roots can be t raced back to Sweden in 1809. Since its establishment, the

institution has sp read to other count ries all over the world – including in

Africa. Tanzan ia became the rst Afr ican countr y to establish the institut ion

of the Ombudsman in 1965, under the name of the Permanent Comm ission of

Enquiry.1 Ma ny Afr ican states followed suit, and established the ofce of

the Ombudsman with the c ommon purpose of adva ncing good governance

and accountability. Considering Af rica’s long and protracted struggle agai nst

colonialism, such establishme nt was meant to be a means of ensu ring the

effective and proper use of government power in t he regulation of state

au th or it y. 2 Ba sically, it signied an intention on the part of governments to

promote a more transparent and accountable ad ministration and an efcient

system of demo cratic governance.

The signicance of the institution of the Ombudsman is, however,

compromised by high levels of maladmi nistration, f raud and corr uption

committed by govern ment ofcials and high-prole individuals – wh ich

hinder the fu nctioning of the instit ution.3 The burden on the i nstitution is

furthe r exacerbated by Africa’s new-comer status of strengtheni ng the process

of democratisation and good governa nce, because of its historic backg round

of colonialism. The institut ion is also undermined by the qualit y of leadership

which Africa has inhe rited from its past. For example, Brow n and Kaiser

have pointed out that “these leade rs aimed more to seize the state than reform

it… be cause they received subst antial popular support from the masses in

recognition of their anti- colonial struggle s and they used it to ar ticulate a

political vision far more authorita rian than initially presented”.4

1 J Hatchard “T he Institut ion of the Ombudsma n in Africa wit h special referenc e to Zimbabwe” (1986) 35

Int & Comp Law Qua rterly 255 255-270

2 DA Chibwa na “The Role of the O mbudsman in ensu ring Pu blic Serv ice: Malawi’s Experience” in M

Claasen, C Ar pin-Lardies & W Ayer (eds) Social Accountabi lity in Africa: Pr actitioners’ Expe rience and

Lessons (2010) 87 87

3 G Lawal “Corrupt ion and Development in Africa: Ch allenges for Political and Econom ic Change” (2007)

2 Humanity & S ocial Sciences J 1 -7

4 S Brown & P Kaiser “De mocratisation s in Africa: Attem pts, Hindranc es and Prospects” (20 07) 28 Third

World Quarterly 1 1-18 See f urther a nalysis in res pect of the qua lity of leader s in Africa in H Dashwood

“Mugabe, Zimba bwe and Southern Af rica: The Stru ggle for Leadersh ip” (2001) 57 Winter Int J 78-100

(2014) 25 Stell LR 595

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Against this backgrou nd this article provides a succi nct overview of the

theoretical framework of the pr inciple of “i ndependence” of the instit ution

of the public-service Ombudsma n in facilitati ng the advancement of the

principles of good governance i n two Souther n African countries: Nami bia

and South Africa. It is important to note that the Ombudsm an in South Africa

is cal led t he “Public Protector” and will be referred to as such herein. The

purpose of selecting t hese two countries is not mot ivated by the fact that

they both have established the in stitution of the Ombudsman p er se – but

rather because they sha re a similar history in the regu lation of state authority.

Namibia – formerly known as South West Africa – was under the authority of

South Africa from 1915 until its independence in 1990.5 In turn, South Af rica

exercised such authority and at tained its own democ ratic governance for

the rst time in 1994 even t hough it h as been independent from the colonial

power, Britain, since 1910.6 The objective of this art icle is to determine t he

various factors that m ay have the potential to compromi se the principle of the

“independence” of the i nstitution. This is limited to the examination of the

principle of “ independence” and not other proce dural or substantive matters

that may have to be addressed by t he institution.

2 Importance of the institution of the Omb udsman

The Ombudsm an is a public ofcial, usually app ointed by government or

parliament, who is charged with r epresenting the int erests of the public in

the regulation of state author ity. The Ombudsman embraces a n important

component of transpare ncy and accountabilit y in democratic governa nce,

through the system of checks and balances. The institution’s broad framework

is deeply ent renched in article 1 of Resolution 327 (2011) of the Congress of

Local Regional Authorities. The Resolution provides:

“[T]he institution of the Ombudsman is an essential element of good governance. It is a valuable

safeguard for protecting the individual against administrative abuses and an important instrument for

supervising public authorities and fostering public condence in local and regional administrators.”7

This means that t he institution is empowered to ensure that:

• “public functionaries act in accord ance with the prescr ibed rules th at

respond adequately to the nee ds and expectations of the general public”;

• “it reinforces the responsibility of public ofcial s to exercise their powers,

and justify how such powers were exercised”;

5 P Hayes , J Sylvester, M Wallace, W Ha rtmann & B Fuller (eds) Namibi a under Sout h African Rule:

Mobility and Containment 1915-1946 (1998) 33 See als o the report by T Ber telsmann-Sc ott & T

Hughes (South Afr ican In stitute of Inter national A ffairs) St rengthening Parliamenta ry Democracy in

SADC Count ries: Namibia Country Re port (2004) The y point out that the N amibian econ omy became

integrate d with t hat of South Africa as the lat ter applied its apar theid policie s in the former whi ch left

many Namibia ns destitute and u nderdeveloped (3)

6 See I Chipkin & S Meny-Giber t “Why the Past Matters: Studyi ng Public Administ ration in South Africa”

(2012) 47 J of Public Administrat ion 102-11 2.

7 Congress of Local and Reg ional Authoritie s of the Counc il of Europe The O ffice of Ombuds person and

Local and Regi onal Authorities Res 327 (2011)

596 STELL LR 2014 3

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