I could not restrain myself from laughing when Members of Parliament (MPs) passed the Ombudsman Bill No 19 of 2021 in the just ended session of the winter parliament whose objective sought to repeal and re-enact with amendments the Ombudsman Act (Cap.02.12) to, amongst other things, expand the functions and powers of the Ombudsman to the protection and promotion of human rights. My laugh emanated from the realisation that they appeared to have been excited by the mere mention that the Bill sought to add the human rights component to the functions of the Ombudsman without meaningfully amending the current legal framework to render the Ombudsman office truly independent from executive control or overreach. As it stands, the Ombudsman’s component of protecting and promoting human rights in Botswana falls far too short from international best practice to meaningfully do just that: protecting and promoting human rights.
The point of departure should be whether the Ombudsman Act as currently constructed after amendment, accords with the Paris Principles. These are set of international principles for ‘minimum standards for effective and credible National Human Rights Institutions’ (NHRIs) whose full compliance attract international recognition. These minimum standards also require that ‘all NHRIs, regardless of size or structure, must meet if they are to be legitimate, credible and effective in promoting and protecting human rights.’ Further, Paris Principles require NHRIs like the Ombudsman in Botswana’s case, to have ‘independence in law, operations, policy and control of resources.’ While it will be the thinking of the political leadership that the amendment to the Ombudsman Act referred to above meets or is in the process of meeting the minimum standards of the Paris Principles, this will at best be mere thinking or hope and at worst, a bridge too far for the Ombudsman. And this is why.
The Ombudsman is seriously one of those many institutions under the complete control of the executive. While Section 9 (1) of the Ombudsman Act provides some false pretence that the incumbent ‘In the discharge of his functions, the Ombudsman shall not be subject to the direction or control of any other person or authority and no proceedings of the Ombudsman shall be called into question in any court of law’ what obtains on the ground tells a different story. At face value and as was harped in parliament when presenting the Bill referred to above, this is fatally negated by Section 7 (5) of the same Act which provides ‘The Attorney General may give notice to the Ombudsman, with respect to any document or information specified in the notice, that in his opinion the disclosure of that document or information would be contrary to the public interest in relation to defence, external relations or internal security; and where such notice is given nothing in this section shall be construed as authorising or requiring the Ombudsman or any member of his staff to communicate to any person for any purpose any document or information specified in the notice’. This simply means the Attorney General holds the keys to what the Ombudsman can or cannot investigate. Unbelievable!
Added to the above is that the Ombudsman is a public officer who is appointed by the President alone. Ignore the fact that this appointment should be done in consultation with the Leader of the Opposition in the National Assembly because in my view, this is a flawed process aimed at legitimising the illegitimacy. In progressive jurisdictions, the appointment of an Ombudsman is followed by an elaborate and extensive process where the President only appoints a candidate recommended by such process. In Malawi for example, the Ombudsman is appointed by the Public Appointments Committee of the National Assembly. While the Ombudsman position is protected by the security of tenure, it is not explicitly clear how he can be removed from office if need be. It stands to reason that owing to lack of clarity on removal, he is at the mercy of the President as the appointing authority. Further to the appointment by the President alone, the Ombudsman is administratively answerable to the Permanent Secretary to the President.
Most human rights violations are at the instigations of the security agencies like the police, the army and intelligence. The corruption busting agency cannot be left out. Citizens and other members of society have been horribly/viciously tortured and killed by these security agencies. In some if not in all instances, these acts would be aided and abetted by the political leadership. The intelligence agency, the Directorate of Intelligence and Security Services has become so rogue that no authority in this country and by extension the President, can call it to order. The current shenanigans in the intelligence agency tell the story that the President could very well be held at ransom by his own appointees. With the Ombudsman inherently subservient to the whims of the political leadership in almost all respects, would a Botswana Ombudsman genuinely and meaningfully protect and promote human rights under these circumstances? Not by any wildest dream if you asked me!
Laws governing State institutions in this country are constructed in such a manner that it becomes extremely difficult for individuals to demand accountability and transparency from government. This I want to believe, was purposeful. A citizen, Mesh Moeti, recently launched a complaint with the Ombudsman with regards to the purchase of the Tautona Lodge valued at P 58 million. The complaint reportedly centred around the rationality of the purchase given the many priorities that should have been considered like the urgent need occasioned by the Covid-19 pandemic and related issues. To add salt to a gaping and sceptic wound, government has said no more information on the sale of the lodge would be forthcoming. It has since emerged the Ombudsman does not have the jurisdiction to entertain the matter. A citizen, Ms Maswabi commonly known as Butterfly, was until recently since 2019, subjected to amongst others, serious issues related to the ‘theft’ of P 100 billion allegedly from the Bank of Botswana. At some point, she was denied her human right of liberty under the pretext that she had a case to answer. It has since emerged her predicament was orchestrated by the State itself through its agencies. Lack of accountability and transparency by government in many respect and on many issues would undeniably lead to gross violation of human rights. Put differently, if it becomes the norm as it presently appears in the body politic of government that laws in this country through so many State agencies are not sufficiently user friendly, it should stand to reason human rights violations are potentially in the offing and that redress thereto is equally and potentially likely to be difficult if not unachievable.
What am I saying in the end? I am saying the Ombudsman is hopelessly disempowered to protect and promote human rights given that while on paper the office appears sufficiently insulated from the political leadership, the very same paper says that is not the case. The fact that the Ombudsman remains via its current legal framework the lapdog of the political leadership, does not augur well for it to protect and promote human rights. With the foregoing in mind, it follows therefore that the imperatives of the Paris Principles with respect to the Ombudsman as a purported National Human Rights Institution, will not be remotely complied with. It is a bridge too far for a Botswana Ombudsman irrespective of who the incumbent is, to remotely as well imagine human rights violations will be protected and promoted. I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe.’ Even though recent Covid-19 numbers appear to be declining, we are not out of the woods as yet. Let us continue to observe all Covid-19 protocols religiously.
