Ombudsman toothless on human rights abuses
Goitsemodimo Kaelo | Friday November 8, 2019 14:37
The study published recently by the Pretoria University Law Press (PULP) is titled the Compendium of documents on National Human Rights Institutions in eastern and southern Africa.
The document provides an overview of NHRIs in eastern and southern Africa and to a large extent by the internationally agreed-upon Principles Relating to the Status of National Institutions, referred to as the Paris Principles.
Professor Bonolo Dinokopila from the Department of Law at the University of Botswana and local human rights attorney Tshiamo Rantao co-authored the article on “THE OFFICE OF THE OMBUDSMAN IN BOTSWANA.”
The authors conceded that Botswana was one of the few African countries yet to establish a fully-fledged national human rights commission, specifically mandated to deal with human rights issues in accordance with the ‘The Paris Principles’ broadly accepted as the benchmark against which the legitimacy and credibility of NHRIs can be assessed.
According to the document, the office of the Ombudsman was never explicitly mandated to deal, amongst others with issues of human rights violations in Botswana. Although by the look of its mandate, it has the promotional and protective brief as envisaged by the Paris Principles, the Office does not receive or preside over petitions, as is the case with other NHRIs established pursuant to these principles.
“The reason for the establishment of the Office was to address issues relating to injustice occasioned by public officials when carrying out their administrative functions,” read the document.
The document also observes that while the Office may investigate any complaint made by a member of the public who claims to have sustained injustice, it has limitations as the Act further precludes it from investigating a matter that has been reported.
It further states that the independence of the Ombudsman has been undermined by its weaknesses in its framework of enabling legislation and a lack of political will to ensure its success.
“Its independence may also be undermined by the substantive application of section 7(5) of the Act. This provision gives the Attorney- General the power to stop the Ombudsman from conducting investigations by issuing a notice that in his or her opinion, the disclosure of documents or information by the Ombudsman would be contrary to public interest in relation to military defence, foreign affairs and internal security,” read the document in part.
The authors also observed that the Office does not have clear qualification requirements for appointment to the position of Ombudsman, which is contrary to the Paris Principles as well as to the principles of ensuring transparency and accountability during the process of appointing persons to such institutions.
Regarding financial autonomy, the document states that the Ombudsman’s operational effectiveness may be further diluted, in part, by the fact that, insofar as human resource matters are concerned, the decision-maker is the Permanent Secretary, who is the head of the Public Service.
On other matters the study called on Botswana to establish an independent body with a clear mandate to promote and protect human rights because fails on most, if not all, of the criteria that the Paris Principles require an entity to meet so as to qualify as a human rights institution.