President Mokgweetsi Masisi’s commitment to the principles of inclusive governance, democracy, and respect for the rule of law has again been called into question following his unilateral decision to appoint the new Ombudsman.
Masisi, contrary to provisions of the Ombudsman Act, appointed former Director of Public Prosecutions (DPP) Stephen Tiroyakgosi as the new substantive Ombudsman. The Act particularly Section 2(2) provides that: The Ombudsman shall be appointed by the President after consultation with the Leader of the Opposition (LOO) in the National Assembly.
However, the LOO Dithapelo Keorapetse was this past week up in arms after discovering through State media that Masisi had gone ahead and appointed Tiroyakgosi despite an agreement between the two men to afford Keorapetse 24 hours to reflect on the President’s choice of candidate.
While Masisi invited LOO over to his office to assist consider ‘candidates’ for possible appointment, the President had only one name on the table which candidate, it would emerge a few hours later, had already been appointed by the time the two men met.
The decision to invite Keorapetse was a mere formality to (ostensibly) fulfil the requirements of the Act.
“During this meeting, I expressed misgivings about the process of consulting the Leader of the Opposition on the appointment of the Ombudsman. I expressly stated that from previous experiences, your office has reduced the process to a mere formality of informing the Leader of Opposition of a decision to appoint and that it is a tick-the box kind of process. You did not agree with this view and indicated that it is, in your view, a meaningful consultation,” Keorapetse says in his subsequent letter to Masisi.
“The framers of the law could not have envisaged a process which has no practical purpose or effect, a process where it is a tick-the-box kind of thing. A process where it is a mere formality of informing Leader of the Opposition. If it was just about informing Leader of the Opposition, then the law would have explicitly said so. But because it says consultation, it ought to mean meaningful consultation where names are provided with credentials of persons and an objective assessment is made.”
Keorapetse says in the letter that while Tiroyakgosi’s credentials meet the basic requirements for the position, his credibility remains questionable.
He says the new Ombudsman’s record as DPP remains questionable particularly given the number of high profile cases investigated and referred to him by the Directorate on Corruption and Economic Crime (DCEC) which cases Tiroyakgosi failed to prosecute.
“The infamous “butterfly case” in which evidence was invented and lies stated in an affidavit, is the worst and apocalyptic criminal justice scandal and an embarrassment to Botswana for which Advocate Tiroyakgosi should have been held accountable. Surprisingly, this did not happen. Advocate Tiroyakgosi engaged an AfriForum linked lawyer in the prosecution of the case dubbed ‘butterfly case’ without due regard to diplomatic ramifications of his decision. This was reckless, ill-advised and impervious decision. I am therefore, altogether not convinced that Advocate Tiroyakgosi fits a profile of a jurist with compassionate, empathetic and courteous temperament. He has not adequately, as DPP, exuded moral courage, high ethics, integrity and fairness,” Keorapetse says in his letter to Masisi.
Tiroyakgosi replaces Augustine Makgonatsotlhe who was appointed Ombudsman in June 2018. In August 2021, a decision was made to consider Makgonatsotlhe for appointment as a diplomat. He subsequently assumed duty at the Ministry of Foreign Affairs and was deployed as Ambassador to the Kingdom of Kuwait.
William Moncho was appointed as Acting Ombudsman. He retired from the public service in June this year and was replaced by Dudu Victoria Leinaeng as Acting Ombudsman.
