Thursday 17 June 2021
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Ombudsman says nothing wrong with immunity for ministers

Ombudsman John Walters this week said he doesn’t see anything wrong with the formulation of a law that will protect ministers from lawsuits-provided they make decisions in good faith.
He also said the country’s Constitution does not need to be amended in order to pave way for the draft 2017 Executive Immunities Bill which is expected to shield ministers against legal challenges while executing their official duties.
Several sections of the public opposed the Bill last week when it was announced that Cabinet gave the Bill the greenlight.
Speaking to The Patriot, Walters said there is no need to amend the constitution in order to provide immunities for ministers as it can be done through “legislation”.
“No, I do not think, you can just make it by legislation, by legislation you can provide for immunities. In my opinion, I don’t believe that there is a need to amend the constitution to provide for that,” said Walters.
Contrary to talks that are rife within public domain, Walters believes that 2017 Executive Immunities Bill will not protect ministers who act “in bad faith” while executing their functions.
“In fact, the Ombudsman legislation makes provision for limitations of liability (immunities), for everything that the Ombudsman does in good faith in connection with his work, you cannot sue him.
“But if he acted mala-fide that is obvious that you can sue him, so my opinion is that there is no need to amend the constitution in order to provide for immunities,” explained Walters.
On the stern opposition by certain sectors of the public towards the 2017 Executive Immunities Bill, Walters said: “As I said, my (Ombudsman) legislation makes provision for limitation of liability, for everything that I am doing in good faith in execution of my duty, but if a minister does things in bad faith, I do not think that he will totally be immune.
“I believe the draft legislation will make provision for all acts of conduct in the execution of the duties as a minister in good faith, you (ministers) cannot execute your duties in bad faith and expect the legislation to protect you,” noted Walters.
Walters further stressed that actions that ministers do in “bad faith” can never be protected even if they do such actions while on official duty.
“You can compare it to the Ombudsman, if the Ombudsman act at mala fide, legislation cannot protect me but if I act in good faith, then I cannot be held responsible.
And that’s the same with ministers, if they acted in good faith in the execution of their duties, they cannot be held liable but if acted in bad faith, then they can be held responsible,” said Walters. Walters was however quick to point out that he had not “studied” the draft 2017 Executive Immunities Bill and his opinion was based “pure common sense”.
Currently, existing Namibian laws only provides immunity for the sitting president through the provisions made by Proclamation on the Repeal of the Laws on the National Assembly which repealed Proclamation R. 101 of 1985 in June 1989.
Should the Executive Immunities Bill be passed as a law in the National, ministers will be protected from individual lawsuits that may arise whilst they are executing their functions in terms of the Namibian Constitution.
The Patriot has been made to understand that the constant fear that ministers have over being sued is a risk in the effective functioning of Government.
The Bill
Through a statement availed to this paper last week, Attorney General Sakeus Shanghala revealed that the 2017 Executive Immunities Bill will provide certainty for ministers for performing their roles.
“The proposed legislative enactment seeks to provide certainty for Ministers, that they will not be held personally civilly liable for the performance of their role,” Shangala stated.
Seemingly agreeing with Walters, Shanghala stated that the Executive Immunities Bill 2017 will ensure that Minister remain accountable for their actions if “engaged in conduct other than in good faith”.
“The inclusion of a right of action for the State to recover from the Minister who has engaged in conduct other than in good faith, and or with gross negligence, ensures an appropriate balance is maintained in supporting Ministers, while ensuring that they remain accountable for their actions,” Shangala added.
The Executive Immunities Bill is not strange in the Namibian context as it was first published in 1985 on the Proclamation on the Establishment and Powers of Legislative and Executive Authority for the Territory of South West Africa (present day Namibia).
In the meantime, The Executive Immunities Bill, 2017 has been referred to the Cabinet Committee on Legislation (CCL) for scrutiny before its highly talked-about tabling in Parliament.

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