- Makgonatsotlhe contests extension
- Says Botswana is taking the wrong path on human rights protection
- Calls for an independent, stand-alone Commission or Institution
- Says Ombudsman’s legitimacy, levels of trust and ability compromised
The Ombudsman, Augustine Makgonatsotlhe has strongly opposed the model that Botswana has adopted for the institution arguing that expanding its role will be counterproductive.
Of the three known models, Botswana has opted for a hybrid institution by amending the Ombudsman Act to expressly confer a human rights mandate to the Office of the Ombudsman. This decision was taken by Government in 2014 and an Amendment Bill is currently being drafted to effect the change.
The public protector further warns that, besides overburdening his office, the decision will ultimately impact negatively on the Ombudsman’s legitimacy, levels of trust as well as its ability to effectively address complaints of maladministration.
The hybrid institution will expand the Ombudsman beyond its traditional mandate of addressing maladministration to include aspects such as protection of human rights, anti-corruption, enforcement of leadership and ethical codes, environmental protection and access to information, amongst others.
Impeccable sources say Makgonatsotlhe is in fierce disagreement of the model preferred and adopted by government. The public protector this week confirmed his reservations and views in a written response saying that he prefers the establishment of a Human Rights Commission or Institution similar to those found in Western Europe, the Americas and the Republic of South Africa.
“This is an independent and stand-alone human rights institution that complies with the Paris Principles in terms of independence and operational autonomy,” he said. This is a view which civil society, led by human rights organisation Ditshwanelo has proposed to the government.
Makgonatsotlhe says past experiences and practices in Africa and elsewhere seem to suggest that an Office of the Ombudsman with multiple mandates experiences far more challenges than a stand-alone institution.
“For example, in countries with significant magnitude of corruption, human rights violations and maladministration, a hybrid institution is likely to take the classical Ombudsman function of maladministration to the back seat. In such situations, fighting corruption or protection of human rights is usually seen as more urgent and attractive than addressing maladministration. Ultimately, such hybrid institutions fail to cope with multiple functions,” he advised.
Despite the delays in the finalization of the Amendment Bill, progress has been achieved in consultations that are being undertaken despite initial protests by civil society that that were excluded at a formative stages. This is a national consultation between Government, civil society and development partners to address this long outstanding issue. The hybrid institutions of Ghana, Tanzania and Namibia have been invited to an upcoming symposium on the matter.
Makgonatsotlhe says it is his hope that “government stakeholders will benefit from the sharing of comparative experiences from other national human rights institutions (including Ombudsman offices with human rights functions) from other countries in Africa and the rest of the world.”
Asked to share his views and experience on hybrid institutions, Makgonatsotlhe says the powers of a hybrid institution were enhanced beyond those of a classical Ombudsman, which merely makes recommendations to taking appropriate remedial action that is binding. Hybrid institutions are prevalent in Central and Eastern Europe, Latin America, Africa, Asia and the Caribbean.
“In these countries while the characteristics of the classical Ombudsman were retained, the institution was modified to suit the countries’ political, legal, economic and social needs, what is commonly referred to as “hybridization” of the Ombudsman,” he says.
The hybridization, he says was partly born from emergent global challenges such as corruption, ethical lapses of leadership and human rights abuses that required redress. Makgonatsotlhe further explained that the flexibility of the Ombudsman provided an avenue of addressing these challenges.
This decision to amend the Ombudsman Act was taken in response to the following; the nature of complaints received by the Ombudsman, though supposedly are maladministration, have human right implications e.g discrimination, preferential treatment, denial of services etc.
Other African states e.g. Ghana, Tanzania, Namibia etc have opted for hybrid institutions, the rationale being that protection against maladministration essentially offers protection against violation of human rights.
Considering Botswana’s budgetary constraints, her small population, her relatively low human rights violations it would be a viable option to confer human rights mandate on an already existing institution (Ombudsman).
Makgonatsotlhe took over the office in 2016 from Festinah Bakwena, the institution’s head during the formative stages of hybridisation.