Ombudsman tackles CLS favouritism

25 February 2021 | Justice

Windhoek • [email protected]

Ombudsman John Walters has launched a legal challenge against a Cabinet decision that he argues is unlawful and prejudiced in favour of Namibia’s so-called struggle kids as it discriminates against other previously disadvantage Namibians.
He is asking the court to declare null and void a Cabinet decision that ensures vacant posts at government entry-level jobs are reserved for ‘children of the liberation struggle” (CLS).
Walters argues in court documents that not only are the positions reserved and not accessible to other Namibians, but the CLS are given the jobs without the usual requirements of interviews or qualifications.
The legal action against the Public Service Commission, the prime minister, George Simataa as Cabinet secretary and others, arose from several complaints made to the Ombudsman’s office by Namibians who lost job opportunities due to these reserved job vacancies.
“The complainants were subject to unfair and discriminatory treatment as a result of the Cabinet decision that operates in favour of the CLS in so far as employment to entry level positions within the public service is concerned,” his founding affidavit notes.
Walters’s founding affidavit argues that these persons were denied the opportunity to compete with entry level jobs as posts are held for CLS only, while “previously disadvantaged Namibian citizens were denied access”.
Walters says investigations by his office also discovered that the CLS were not subject to normal recruitment processes as required by law. He says this violates not only the public service law, but the constitution that guarantees the rights to equally and non-discrimination.
Walters said the investigation into the complaints also found that the recruitment process of the CLS “itself is not transparent nor is it rational”. He argues that this is against public service regulations and he is thus fighting to have the courts declare the Cabinet decision unconstitutional and running afoul of the public policy act.

The heads of argument filed by Walters on Monday this week, says the health ministry in January 2020 confirmed Cabinet's decision and the recruitment of liberation kids to the cleaner pots.
“Cabinet passed a resolution to address the plight of the Children of the Liberation Struggle. It provides for the appointment of CLS, especially in entry-level positions,” the health ministry informed the Ombudsman’s office.
In May 2020, secretary to Cabinet George Simataa, in a letter to the justice ministry, said that in terms of the constitution “cabinet is the executive arm responsible for government policy and implementation. In view of this, the Ombudsman cannot determine government’s recruitment policy neither instruct cabinet how to run the affairs of the country. Our laws do not give him such mandate.”
But Walters argues that Cabinet’s decision is not in compliance with the law and contradicts the provision of the public service act.
The heads of argument stress that Cabinet decision is “causing discrimination” and “victims of discrimination”.
He argues further that the act is unconstitutional.
Walters said that the complainants who approached his office “are all previously disadvantaged Namibian citizens” who face unemployment as a result of social, economic and educational imbalances within Namibian society.

In the latest court filings, submitted on Monday, government lawyer Freddy Kadhila asked the court to allow the respondent's late filing in response to the civil case. He is also asking the court to uplift the debarment of the respondents as a result of the late filings.
“The respondents remain resolute to defend this matter which is of great public importance on various grounds, including the fact that the applicants seek to have the court nullify a lawful decision which pertains to policy matters and therefore encroaches on the principle of separation of powers.”
Kadhila also stressed that the Ombudsman’s case effectively seeks to nullify a decision that “ensures the plight of the children of the liberation struggle are addressed by the government of Namibia”.
Saima Nambinga of Palyeenime Incorporated is acting on behalf of the Ombudsman and the second applicant in the case, Reginald Roman.
High Court Judge Thomas Masuka presides.

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