E/C.12/NAM/CO/1
C.
Principal subjects of concern and recommendations
Status of economic, social and cultural rights
4.
The Committee notes with concern that several economic, social and cultural rights
are not recognized among the fundamental rights and freedoms protected in the
Constitution of the State party. The Committee is concerned that, as such, they cannot be
enforced through the means provided in article 25 of the Constitution, are not accorded
constitutional supremacy in the State party’s legal order and are also not formally part of
the mandate of the Ombudsman (art. 2 (1)).
5.
The Committee recommends that the State party include all Covenant rights in
the fundamental rights and freedoms protected in the Constitution.
Justiciability of the Covenant rights
6.
The Committee notes with concern the absence of jurisprudence invoking the
Covenant rights, in spite of the fact that, under the State party’s monist system, the
Covenant forms part of its domestic law. The Committee is also concerned at the lack of
awareness of the Covenant rights among the general public, public officials and legal
professionals (art. 2 (1)).
7.
The Committee recommends that the State party raise awareness of the
Covenant rights and their justiciability among the general public, public officials, the
judiciary and legal professionals, including through training programmes for them.
The Committee also recommends that human rights be taught at all levels of
education. The Committee refers the State party to its general comments No. 3 (1990)
on the nature of States parties’ obligations and No. 9 (1998) on the domestic
application of the Covenant.
Access to justice
8.
The Committee is concerned that, under the new protocol on the Southern African
Development Community Tribunal, the State party, which is home to the Tribunal, has,
together with the other members of that Community, removed the right of access of natural
and legal persons to the Tribunal (art. 2 (1)).
9.
The Committee recommends that the State party reconsider its position and
take the initiative in promoting the reinstatement of the right of access of natural and
legal persons to the Tribunal under the new protocol, with a view to providing the
citizens of the member States of the Southern African Development Community the
right to assert and vindicate their human rights, including economic, social and
cultural rights.
Office of the Ombudsman
10.
Notwithstanding the activities undertaken by the Ombudsman and the A(R) status
granted by the International Coordinating Committee of National Institutions for the
Protection and Promotion of Human Rights to the Office of the Ombudsman, the
Committee notes with concern that the Ombudsman Act of 1990: (a) does not specify the
duration of the term of the Ombudsman; (b) mandates the Ombudsman primarily with
investigative duties and functions; (c) provides for the placement of public service officers
as staff of the Ombudsman; and (d) does not specify the source of budget of the
Ombudsman (art. 2 (1)).
11.
The Committee recommends that the State party amend the Ombudsman Act
of 1990 in full accordance with the principles relating to the status of national
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