Botswana: Office of the Ombudsman

Updated December 2009

Note: See also MPABANGA, D 2009 Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa: Office of the Ombudsman in Botswana [PDF document], EISA Research report No 44.

The Office of the Ombudsman was established by the Ombudsman Act of 1995 and the first ombudsman was appointed in 1997. The ombudsman is mandated to investigate complaints of injustice or maladministration in the Public Service received from the public (including bodies corporate), and if such complaints are valid, to make recommendations to the appropriate authority for compliance therewith. In the event of non-compliance the ombudsman is obliged to make a Special Report to the National Assembly. The Office of the Ombudsman also has jurisdiction over human rights violations, as well as complaints from persons in both legal custody and those in hospitals. The office has the power to summon witnesses where necessary to give evidence under oath or affirmation. The ombudsman is prohibited from investigating any state-related action or investigating crimes.

The ombudsman is appointed for a term of four years by the President in consultation with the Leader of the Opposition in the National Assembly. The first ombudsman, Mr. Lethebe Maine served two consecutive terms, from 1997 to 2005 and Mr. Ofentse Lepodise was appointed in 2006. Once appointed, the ombudsman can only be removed for misconduct, the procedure for such removal being the same as that for High Court judges (Government of Botswana Undated ) . The Office of the Ombudsman is an extra ministerial body and in discharging its functions is not subject to the direction or control of any other person or authority and its proceedings cannot be questioned in any court of law. Reports from the office of the ombudsman are filed to the President and eventually to parliament.

The Office has been largely effective and the government has generally cooperated with the ombudsman. Nevertheless, the lack of autonomy and independence has been a major shortcoming due to the fact that its existence and establishment were part of the Public Service (Transparency International 2001) . The Act is borrowed almost entirely from the British PCA Act 1967, which created an ombudsman institution in an unnecessarily truncated form (Fombad 2001) . The need to amend the Act to create the necessary independence and autonomy has been argued for by the ombudsman in two annual reports. In the first (Ombudsman 1998) he wrote:

The essential characteristics of the ombudsman offices worldwide are that they must be impartial, independent and objective. These three principles cannot indeed be overemphasised. A key and central element to any ombudsman operation must be its independence from the Government and the agencies it is mandated to investigate. In order to put this independence into correct perspective, the Ombudsman Act must be amended to make the institution a juristic person. It is important in my view that the independence of the office be clearly demonstrated in the statutory basis on which it is established .

This position was reiterated in a second report (Ombudsman 2000):

In my first Annual Report I made the point that the Ombudsman Act must be amended to make the Office independent from Government. This assertion I repeat. This Office needs to be established outside of the Public Service to make it independent of any other Government Ministry. Apart from all else this is international practice. It is important that the office be seen by the public and particularly all government departments as not being in competition with them. Neither the ombudsman nor any member of the staff should be in competition for a higher post within the government promotional hierarchy. There is indeed in my respectful submission, a manifest conflict of interest where either the ombudsman or an investigator investigates an officer or department when he or she may aspire for a higher position in that department. Indeed an investigation officer is put in an invidious position if they are expected to investigate the Directorate of Public Service Management, make adverse findings about the department and still expect the same department to objectively assess their prospects for promotion .

The 1997/98 annual report also recommended the establishment of a Parliamentary Committee so that it could be approached from time to time with any matters relating to its functions.

In the 2005/2006 annual report, the ombudsman, Mr. Lepodise regretted that a large cross-section of Batswana were still ignorant about the existence of the institution despite public education programmes conducted in villages by the Office. A survey to systematically assess the level of public awareness is currently under preparation. The main challenges identified by the ombudsman were the delayed response to enquiries and staff shortages. Delays were attributed to a weak records management system and the fact that occasionally heads of departments had to conduct investigations themselves in order to gather enough information to deal with complaints. The office was understaffed resulting in investigators doubling on additional duties. Also Legal Investigators were in short supply.

Out of 1080 complaints received in 2005, the Ministry of State President accounted for 311 or 29% complaints. This was followed by the Ministry of Education with 78 complaints or 14 % and then by the Ministry of Local Government with 74 complaints or 14% (Ombudsman 2006) .

Access to the office is through the headquarters in Gaborone and the branch office in Francistown. A biannual newsletter was launched in 2005 to sensitise the public on the role, functions and limitations of the office of the ombudsman. Development of a website and improving the case management system in the Francistown office were some of the planned development projects aimed at improving awareness and efficiency.

Official web site

Office of the Ombudsman: http://www.ombudsman.org.bw/ [opens new window] (accessed 8 Mar 2010).

References

FOMBAD, C 2001 "The Enhancement of Good Governance in Botswana: A Critical Assessment of the Ombudsman Act, 1995", Journal of Southern African Studies, 27(1).

GOVERNMENT OF BOTSWANA UNDATED "Office of the Ombudsman" IN Ministry of State President, [www] http://www.gov.bw/index.php?option=com_content&view=article&id=23:ministry-of-state-president&catid=29:ministries (offline 8 Mar 2010).

OMBUDSMAN 1998 Annual Report 1997/1998, Gaborone, Government Printer.

OMBUDSMAN 2000 Annual Report 1999/2000 Gaborone, Government Printer.

OMBUDSMAN 2006 Annual Report 2005/2006. Gaborone, Government Printer.

OMBUDSMAN ACT, 1995 (CHAPTER 02:12), [www] http://www.ombudsman.org.bw/index.php?option=com_content&task=view&id=16&Itemid=42 [opens new window] (accessed 8 Mar 2010).

TRANSPARENCY INTERNATIONAL 2001 "National Integrity Systems Country Study Report-Botswana".