Wednesday, August 10, 2022

Bakwena’s appointment as Ombudsman is dubious

The former Director of the Directorate of Public Service Management (DPSM), Festina Bakwena, has been appointed the new Ombudsman, a position which became vacant subsequent to the untimely passing away of Ofentse Lepodise. The office was pioneered by the late Lethebe Maine. This article contends that the appointment of Bakwena to head the institution is not a welcome development and that the institution has become a mere public relations exercise. The Ombudsman institution ought to both reflect, and contribute to, the maintenance and improvement of the quality liberal democratic system that exemplifies ethical governance, transparency and accountability, pluralism and the rule of law as fundamental principles. The word Ombudsman is of Scandinavian (in particular Swedish) origin, the relevant meaning of which is grievance officer. According to the International Ombudsman Institute (IOI), the professional association representing ombudsmen at an international level, the office now exists in about 120 countries around the globe. It is the public institution that investigates citizens’ complaints against maladministration in areas of public administration.

According to Wieslander, the originality of the institution lay primarily in its independence of the executive arm of government, guaranteed by the fact that the Ombudsman has to be elected by, and reports to, parliament. In contrast with the Scandinavian model, the Ombudsman in Botswana, like in other less democratic countries in Africa and elsewhere, is not appointed by the legislature but by the President in consultation with the leader of opposition in Parliament. This is a polite way of saying he or she is appointed by the President alone as there is no requirement for mutual agreement between the leader of opposition and the President on the candidate.

Consultation is construed by the presidency to mean a mere formal process of informing the leader of opposition. It is not a genuine and effective engagement of minds between the President and the opposition leader. Therefore, a mere formalistic endeavour to consult does not amount to consultation. The essence of consultation is the exchange of ideas on a give-and-take basis. The modus operandi must allow fair chance to both sides to converse effectively and attain the purpose for which prior consultation is prescribed. The institution of the Ombudsman in Botswana is not a creation of the Constitution and this is a deep-seated weakness. In South Africa the Public Protector (equivalent of the Ombudsman) is appointed by the President, on the recommendation of the National Assembly, in terms of the Constitution, for a non-renewable period of seven years. In Namibia, an Ombudsman is appointed by the President in accordance with the advice of the Judicial Service Commission. The principle of Ombudsman independence requires that the power of appointment should not be dominated by the presidency. This is because, if the presidency enjoys an exclusive privilege in selecting the Ombudsman, a risk always exists of misuse of the power of appointment.

It is lucid that in Mma Bakwena’s case, political or other considerations have prevailed over the merit criteria for the appointment. As a consequence by facilitating preferential treatment and or political favouritism, the quality of the office will be diluted. Ombudsman who obtains their position as a result of executive discretion or favour could be compelled to serve the interests of their appointing authority in a manner which might undermine the institution’s autonomy. Mma Bakwena’s appointment is dubious; it is a reward for her loyalty and unquestioning obedience to authority. While she is former Director of the Directorate of Public Service Management (DPSM) and arguably an esteemed civil servant, her prejudicial role in the recent public sector strike and subsequent government-union hostilities suggests that she is not objective and therefore unfit to hold the Office of Ombudsman. The Ombudsman’s investigatory powers are highly restricted in Botswana. The Ombudsman Act lists matters not to be investigated by the office and these are numerous and very substantial. These are: Action taken for protecting the security of the state; Commencement of civil or criminal proceedings in any court; Appointment of offices of government; Matters certified by the president or minister to affect relations or dealings between the government of Botswana and any other government or any international organisation; Action taken for the purpose of protecting the security of the state; Action taken in respect of appointments to offices or other employment in the service of the government of Botswana or appointment made by or with the approval of the President or any Minister, and action taken in relation to any person as the holder or former holder of such office, employment or appointment; Action taken with respect to orders or directions to the Botswana Police Force or Botswana Defence Force (BDF); and Action taken outside Botswana by any governmental representative or officer. The list is not exhaustive.

The defence and security realm is protected from investigation by the Ombudsman and this has far reaching implications on democratic oversight of defence and security as an integral part of liberal democracy. In Namibia, the office has broad powers and functions to investigate complaints of violation of fundamental rights and freedoms, the abuse of power, manifest injustice, corruption, or conduct by any official which would be regarded as unlawful, oppressive or unfair in a democratic society. The powers of the ombudsman in Namibia include investigation of the defence force and the police in so far as complaints might be related to the failure to achieve a balanced structuring of such services or equal access by all to recruitment, or fair administration in those agencies. The ombudsman in Namibia reports to parliament – and not to the president. In Botswana the Ombudsman Act is silent on the enforcement and prosecutionary powers of the office and according to one scholar, they must be deemed to be limited to non-existent. Observers have concluded that the effectiveness of the institution of the ombudsman in Africa is mediocre. The features which lie beneath their contemptible performance are in particular their lack of independence from the executive arm; in general they are appointed by the executive and answerable to it and the fact that they depend on the executive for their budgets and staffing and lack powers to enforce their recommendations. All of these restrictions, many argue, apply to the Ombudsman office as enacted in Botswana. It is almost toothless relative to the executive. After receiving a written complaint from the Botswana Congress Party (BCP) about the Vice President piloting of BDF aircraft, Lethebe Maine handed a report to President Festus Mogae in April 2001and more than two years later, after President Mogae failed to act on his report, he passed the matter to the minister responsible, in the expectation that the report will be tabled before Parliament, but still no action was taken. In late 2003 the Ombudsman affirmed publicly that there was no more that he could do. If the Ombudsman is unable to enforce his recommendations/findings and the government doesn’t respond or act on his or her findings, then I am tempted to conclude that this office is a mere public relations exercise. Maine had called for the enactment of a Freedom of Information Act in 1999. He argued that attractive words about the Ombudsman as a pillar of democracy meant very little, unless the right to complain and raise issues was fully available to all sectors of the public. Botswana needs to benchmark with other democracies such as Namibia and South Africa and copy best practices of appointing oversight bodies’ heads to maintain integrity and independence of those institutions and to inspire public confidence.

*Keorapetse is Vice President of Botswana Congress Party Youth League


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