Human rights are traditionally divided into two main groups, namely –
• civil and political rights, and
• economic, social and cultural (ESC) rights (also referred to as second and third generation rights).
In Namibia, since Independence, most people can freely exercise and enjoy the fundamental rights and freedoms recognised and protected in the Bill of Rights entrenched in the Constitution of the Republic of Namibia (Chapter3), most of which are civil and political rights. But how many people enjoy or even are aware of their Economic, Social and Consumer rights? ESC rights play an important role in people’s standard of living and should play a greater role in improving people’s opportunities in life.
A literal interpretation of the Constitution would thus let us understand that some, but not all, consumer protection issues are considered rights.
John Nakuta, in his paper, “The justiciability of social, economic and cultural rights in Namibia and the role of the nongovernmental organisations”, argues that ESC rights can be enforced both directly under the Namibian Constitution through Article 144 of the Constitution, which reads as follows:
Unless otherwise provided for by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was ratified by the Namibian Parliament and came into force on 28 February 1995. These internationally recognised rights are:
• The right to work;
• the right to fair conditions of employment;
• the right to form and join trade unions;
• the right to social security;
• the right to protection of the family;
• the right to an adequate standard of living, including the right to food, clothing, and housing;
• the right to health;
• the right to education; and
• the right to culture.
This means that civil and political rights as well as ESC rights have to be treated in an equal manner, on the same footing, and with the same emphasis.
The Namibian government as a party to the Covenant, is obliged to take steps to achieve the fulfilment of all the ESC rights recognised and protected under the Covenant. These steps include the adoption of legislation that allows for citizens to have these rights enforced.
Office of the Ombudsman as Consumer protectorOne of the institutions created to protect the rights of people in Namibia is the Office of the Ombudsman. According to Wikipedia, an ombudsman is a person who acts as a trusted intermediary between either the state or an organization, and some internal or external constituency, while representing not only but mostly the broad scope of constituent interests. It comes from the Old Norse word umboðsmaðr, essentially meaning "representative". In modern language the ombudsman is an official appointed by the government or parliament with a significant degree of independence, who is charged with representing the interests of the public by investigating and addressing complaints reported by individuals.
In the case of Namibia, the Ombudsman is appointed by the President on the recommendation of the Judicial Service Commission and the function of the Ombudsman is defined under Chapter of the Constitution. In brief, the Ombudsman has the duty to investigate complaints against government institutions or employees; the protection of our living resources and violations of fundamental rights and freedoms.
Of particular interest for the Namibian consumer is Article 91 (d) that states:
“The Ombudsman functions shall include the following… the duty to investigate complaints concerning practices and actions by persons, enterprises and other private institutions where such complaints allege that violations of fundamental rights and freedoms under this
Constitution have taken place.”
Already the Office of the Ombudsman investigates a variety of civil, political, economic, social and cultural rights. These have included issues around unfair dismissal, remunerations and salaries, and pension funds. These are all issues of a socio-economic nature, indicating the important role the Ombudsman plays in protecting and enforcing socio-economic rights in Namibia.
Any person in Namibia has the right to complain to the Office of the Ombudsman, including a problem in respects of consumer protection. I would like to encourage any consumer that has an issue of consumer protection to apply for them to investigate the issue.
My hope is that with the support of the Ombudsman we will be able to speed the process of enacting a law on Consumer Protection.