The quality of administrative justice in Namibia in the spotlight
OPINION
Shaun Gariseb and Jarii Tjeja-uaTjatindi
Prof Emmanuel Kasimbazi (2007) has argued that “the nature and scope of conflicts must be characterised before intervention occurs. Decisions must be enforceable, and adjudications must be provided. Resolution mechanisms must be viewed by citizens as legitimate. Means of accommodating the ‘losers’ of the dispute or conflict must also be provided.”
This assertive position raises questions about the restorative measures available to citizens in relation to public administrative decisions and actions undertaken by individuals or institutions with public responsibilities.
Hence, our considered interrogation in this article on the quality of administrative justice as a bridge between the state and its citizens.
Legally, Article 1(6) of the Namibian Constitution presupposes that “the Constitution is the supreme law.”
This teaches us that any law or conduct inconsistent with the Constitution is automatically invalid, and wherein obligations imposed by it must be fulfilled.
Herein, the notions of authority, legitimacy and the binding and enforceable nature of legal instruments are put to the test within a constitutional and human rights framework.
Furthermore, Article 30, read with Schedule 2, sets out the oaths of the president and ministers, affirmatively including their respective duties to “uphold, protect and defend” the Constitution of Namibia.
Additionally, of interest to ordinary citizens is the affirmation of the continuous validity in terms of the applicability of both customary and common laws as per Article 66 of the Namibian Constitution, owing to substantive and procedural considerations.
Within such constitutional frameworks equally important public institutions (e.g., the Office of the Ombudsman, Public Service and Anti-Corruption Commissions) are established, as provided for by explicit constitutional provisions, in relation to fundamental rights and freedoms in the context of administrative justice, of which its quality in Namibia remains uncertain.
Fundamental rights
In determining the quality of administrative justice, it is prudent that reference be made to articles 32(1) and 5, respectively.
The former provides that: “As the Head of State, the President shall uphold, protect and defend the Constitution as the Supreme Law...”, whilst the latter legally dictates that “The fundamental rights and freedoms shall be respected and upheld by the executive, legislature and judiciary and all organs of the Government and its agencies and where applicable, by all legal and natural persons in Namibia and shall be enforceable by the Courts in the manner hereinafter prescribed.”
Article 18 of the Namibian Constitution forms a central part of fundamental human rights and freedoms, which are legally binding and enforceable as dictated by articles 5 and 1 through 32(1) whilst read purposefully with articles 143 and 144, respectively.
Defined on the premise of fairness, reasonableness and lawfulness, the fundamentals of administrative justice in Namibia presuppose that “administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent court or tribunal.” - Article 18, Namibian Constitution.
Our contention for the benefit of the general populace is that administrative justice must be defined and interpreted in such a manner that it serves as the sole basis on which citizens can rely when seeking recourse against any unreasonable, unfair or unlawful actions or decisions taken by administrative bodies or officials.
Entitlement
The foregoing presents an interesting concern for public consideration: when faced with questions of unreasonableness, unfairness or unlawfulness in their decisions and actions, many institutions and individuals rely on the notion of ex officio – a position that presupposes that one cannot review one’s own decisions unless directed by a superior authority.
The only alternative often presented to the public is to appeal such actions or decisions to a higher authority, such as boards, ministers or the courts.
Recognising the costly and protracted nature of appeals, most administrative decisions and actions have gone unchallenged, even when they were or are bad in law. This is because citizens are often unaware of their inherent constitutional and human rights to administrative justice.
Secondly, a culture of entitlement among both administrative bodies and officials hinders accountability in the exercise of public power.
Most institutions, including traditional authorities, land boards, the Master of the High Court, local and regional councils, and O/M/As, have developed and adopted capitalistic, parasitic and dictatorial approaches to service delivery.
Our argument, which is supported by the reactions of these institutions to our work as human rights defenders, is that most administrative institutions and officials have developed a culture of entitlement.
They think they are doing favours and, therefore, consider their transgressions to be normal.
In conclusion, if we are to rely on Article 18 for “enhancing the efficiency of responsive and accountable public service,” the president must ensure that Namibia goes beyond its constitutional provisions to guarantee the quality of administrative justice for all by providing a mechanism for the expeditious and cost-effective settlement of administrative disputes. Such an executive decision would require the President to ensure that Article 18 is fully complemented by an Act of Parliament specifically addressing administrative justice and appeal tribunals in Namibia.
* Shaun Gariseb is a human rights defender and regional social justice activist and ancestral land rights Associate involved in the protection of communities’ rights in land at the Namibia Ancestral Land Foundation and /Khomanins Landless Association.
* Jarii Tjeja-uaTjatindi is a human rights defender and ancestral land rights associate-activist with the Namibia Ancestral Land Foundation and //Khomanins Landless Association, and a certified civic engagement practitioner.
The views expressed are solely theirs.
Prof Emmanuel Kasimbazi (2007) has argued that “the nature and scope of conflicts must be characterised before intervention occurs. Decisions must be enforceable, and adjudications must be provided. Resolution mechanisms must be viewed by citizens as legitimate. Means of accommodating the ‘losers’ of the dispute or conflict must also be provided.”
This assertive position raises questions about the restorative measures available to citizens in relation to public administrative decisions and actions undertaken by individuals or institutions with public responsibilities.
Hence, our considered interrogation in this article on the quality of administrative justice as a bridge between the state and its citizens.
Legally, Article 1(6) of the Namibian Constitution presupposes that “the Constitution is the supreme law.”
This teaches us that any law or conduct inconsistent with the Constitution is automatically invalid, and wherein obligations imposed by it must be fulfilled.
Herein, the notions of authority, legitimacy and the binding and enforceable nature of legal instruments are put to the test within a constitutional and human rights framework.
Furthermore, Article 30, read with Schedule 2, sets out the oaths of the president and ministers, affirmatively including their respective duties to “uphold, protect and defend” the Constitution of Namibia.
Additionally, of interest to ordinary citizens is the affirmation of the continuous validity in terms of the applicability of both customary and common laws as per Article 66 of the Namibian Constitution, owing to substantive and procedural considerations.
Within such constitutional frameworks equally important public institutions (e.g., the Office of the Ombudsman, Public Service and Anti-Corruption Commissions) are established, as provided for by explicit constitutional provisions, in relation to fundamental rights and freedoms in the context of administrative justice, of which its quality in Namibia remains uncertain.
Fundamental rights
In determining the quality of administrative justice, it is prudent that reference be made to articles 32(1) and 5, respectively.
The former provides that: “As the Head of State, the President shall uphold, protect and defend the Constitution as the Supreme Law...”, whilst the latter legally dictates that “The fundamental rights and freedoms shall be respected and upheld by the executive, legislature and judiciary and all organs of the Government and its agencies and where applicable, by all legal and natural persons in Namibia and shall be enforceable by the Courts in the manner hereinafter prescribed.”
Article 18 of the Namibian Constitution forms a central part of fundamental human rights and freedoms, which are legally binding and enforceable as dictated by articles 5 and 1 through 32(1) whilst read purposefully with articles 143 and 144, respectively.
Defined on the premise of fairness, reasonableness and lawfulness, the fundamentals of administrative justice in Namibia presuppose that “administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent court or tribunal.” - Article 18, Namibian Constitution.
Our contention for the benefit of the general populace is that administrative justice must be defined and interpreted in such a manner that it serves as the sole basis on which citizens can rely when seeking recourse against any unreasonable, unfair or unlawful actions or decisions taken by administrative bodies or officials.
Entitlement
The foregoing presents an interesting concern for public consideration: when faced with questions of unreasonableness, unfairness or unlawfulness in their decisions and actions, many institutions and individuals rely on the notion of ex officio – a position that presupposes that one cannot review one’s own decisions unless directed by a superior authority.
The only alternative often presented to the public is to appeal such actions or decisions to a higher authority, such as boards, ministers or the courts.
Recognising the costly and protracted nature of appeals, most administrative decisions and actions have gone unchallenged, even when they were or are bad in law. This is because citizens are often unaware of their inherent constitutional and human rights to administrative justice.
Secondly, a culture of entitlement among both administrative bodies and officials hinders accountability in the exercise of public power.
Most institutions, including traditional authorities, land boards, the Master of the High Court, local and regional councils, and O/M/As, have developed and adopted capitalistic, parasitic and dictatorial approaches to service delivery.
Our argument, which is supported by the reactions of these institutions to our work as human rights defenders, is that most administrative institutions and officials have developed a culture of entitlement.
They think they are doing favours and, therefore, consider their transgressions to be normal.
In conclusion, if we are to rely on Article 18 for “enhancing the efficiency of responsive and accountable public service,” the president must ensure that Namibia goes beyond its constitutional provisions to guarantee the quality of administrative justice for all by providing a mechanism for the expeditious and cost-effective settlement of administrative disputes. Such an executive decision would require the President to ensure that Article 18 is fully complemented by an Act of Parliament specifically addressing administrative justice and appeal tribunals in Namibia.
* Shaun Gariseb is a human rights defender and regional social justice activist and ancestral land rights Associate involved in the protection of communities’ rights in land at the Namibia Ancestral Land Foundation and /Khomanins Landless Association.
* Jarii Tjeja-uaTjatindi is a human rights defender and ancestral land rights associate-activist with the Namibia Ancestral Land Foundation and //Khomanins Landless Association, and a certified civic engagement practitioner.
The views expressed are solely theirs.
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