The Minister for Presidential Affairs, Governance and Public Administration Rre Kabo Morwaeng is scheduled to table the Ombudsman Bill 2021 in the upcoming winter session of the National Assembly. At the heart of this Bill is to turn the Ombudsman into a fully-fledged Human Rights Institution. That is, the Ombudsman will upon the Bill passing into law be mandated to, over its current remit of investigating maladministration, have his/her functions and powers expanded to include protection and promotion of human rights in this Republic. At face value, it appears the intentions of the Bill are as noble as they could ever be. But will this be the case in the broader scheme of things having regard to how the Ombudsman is appointed and the legal framework upon which such appointment is made? I wish to answer this question on the general nature of how institutions like the Ombudsman are crafted and on how they have operated over time.
I will in conclusion argue that if the Ombudsman is going to operate the same as it has done before, turning the Ombudsman into a human rights institution will not bear fruit and will consequently, be a pie in the sky. This because political leadership is not willing to cede its influence from institutions like the Ombudsman such that it continues to influence and manipulate them. A true and impartial human rights institution should as held by the Asia Pacific Forum ‘operate and function independently from government.’ The South African Human Rights Commissioners ‘are appointed by the President on the recommendations of the National Assembly’ while the Kenya National Commission on Human Rights Commissioners ‘are appointed by the President of Kenya after nomination by a selection panel consisting of governmental and non-governmental interests.’
What creates scepticism in me is that while the country is full of institutions of the Ombudsman rank or thereabout, such have meaningfully not and for the longest time, delivered on their mandates particularly because of their close proximity to political power and influence. The reason(s) for this is that while the legal frameworks establishing them seem to accord them full autonomy and insulation from political interference and manipulation, what obtains in the real world is that such legal frameworks render them susceptible to such political interference and manipulation from many fronts. Appointments of persons heading these institutions are inherently the preserve of the President where in some instances, there are no applications and interviews to select the best candidate. Some of these institutions is the Directorate on Corruption and Economic Crime (DCEC) and the Directorate of Intelligence and Security Services (DIIS). Corruption in this country has exponentially increased like the Covid-19 numbers Batswana have become accustomed to and continues to do so to this day under DCEC watch with nothing suggesting it will abate any time soon. DIIS has continued to be the big brother institution over similar ones under the convenient narrative of national security even where such is possibly not the case. The security of tenure of heads of the DCEC and DIIS are at the behest of the President where I have watched them dismissed from their positions as and when the President felt like doing so. With the foregoing in mind, it stands to be concluded the fate of the Ombudsman with the added responsibility of overseeing human rights aspect consequent to the passing of the Bill into law will be at the mercy of the President.
The other scepticism about the Ombudsman fulfilling the mandate of the human rights component is to do with the appointment of the Ombudsman and his/her deputy by the President after consultation with the Leader of Opposition in the National Assembly and the Speaker of the National Assembly. By definition, consultation with the Leader of Opposition is on the face of it, a fairly good thing meant to meaningfully and objectively get a buy-in in the appointments from the opposition bloc. But where the phrase applies or has applied to similar appointments elsewhere, past and present Leaders of Opposition have cried foul that the consultation is nothing more than the President merely informing them of his choice without objectively demonstrating such choice in terms of requisite attributes and suitability amongst others when called upon to so demonstrate. The President’s choice has become a one man show in that whatever name the Leader of Opposition brings forward in instances where such occurred for consideration and possible appointment, the President’s name always carries the day. In the end, the phrase ‘after consultation with the Leader of Opposition’ plays no meaningful value in the relevant appointments. It is almost if not fait accompli.
With the President appointing the Ombudsman and his/her Deputy in the manner described above, it suggests there is no rigorous appointment process to identify the most suitable candidates. This in and of itself creates a culture of candidates so appointed susceptible to be beholden to the appointing authority. This brings me once again to the question of whether the Ombudsman’s office will act differently from how it has in the distant and recent past. One still vividly remembers how the famous finding by the founding Ombudsman Rre Lethebe Maine was treated with contempt by the former President Rre Festus Mogae wherein the former found that it was improper for the former Vice President Rre Ian Khama to be flying Botswana Defence Force aircrafts when he was no longer its employee. This emanated from the fact that Rre Maine made recommendations to Rre Mogae who was expected to stop Khama from doing so. By their very nature, recommendations are accepted and implemented at the discretion of their receiver. As it is well known, Rre Khama continued to fly Botswana Defence Force aircrafts until he left office in 2018 notwithstanding the improper conduct finding by Rre Maine. The point I am making here is that even with the mandate of the Ombudsman expanded to cover human rights issues, the status quo with regards to the political grip on institutions like the Ombudsman is set to remain entrenched. While the Khama’s issue was not a human rights violation, it was a matter investigated by the Ombudsman but rejected by the appointing authority.
Human rights violations are largely perpetuated by the State security agencies like the police and DIIS amongst others over persons within and sometimes outside the borders of the Republic. These violations are in the majority of instances at the behest of the political leadership of the day where individuals are persecuted for a school of thought different from those held and pursued by such political leadership. These could be opposition or ruling party politicians; journalists and general members of society. Now with human rights violations perpetuated by the political leadership of the day through security agencies, how would an Ombudsman solely appointed by the President not because they are the best candidate possibly from a pool that may have applied and appointed if such process was available, objectively and meaningfully deal with human rights violations and abuses? Even if the appointed persons are the appropriate ones in all respects, they will still be in compromised positions owing to the manner they were appointed. Either way, the outcome is bound to be the same.
Mindful of the fact that human rights violations come at a huge cost to the State here and abroad in terms of its public imagine in the eyes of the international community, it goes without saying that human rights violations perpetuated by the State will not be exposed owing to the ‘unholy alliance’ between the Ombudsman and the appointing authority. And I am saying this on the understanding that the Ombudsman reports to the President and would therefore as a matter of ‘routine’ present a report on human rights violations to him/her. It is not far-fetched to conclude that adverse findings against the State will be swept under the carpet for obvious reasons.
It is my considered view therefore that given the fact that political leadership is not yet willing to free institutions like the Ombudsman from its grip, turning the same into a human rights institution will be a proposition very attractive and compelling on paper but bound to achieve very little if any if reality check is thrown into the equation. The moment one sees a critical State appointment made after consultation with the Leader of Opposition should spell doom for that appointment and institution. Under these circumstances, upholding or even attempting to uphold human rights is still a bridge too far until and unless Botswana follows best practices to do so. Maybe Mary Robinson is correct to say ‘Today’s human rights violations are the causes of tomorrow’s conflicts.’ I am prepared to be persuaded otherwise as always. Judge for Yourself!
‘No one is safe until everyone is safe.’ Kindly be reminded to treat Covid-19 pandemic very seriously by adhering to all its safety protocols. We can and should do so.
