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Bluebook 21st ed.

E. K. Quansah, Ombudsman Arrives in Botswana: A Note on the Ombudsman Act, 1995, The
, 39 J. AFR. L. 220 (1995).

ALWD 6th ed.

Quansah, E. E., Ombudsman arrives in botswana: A note on the ombudsman act, 1995, the
, 39(2) J. Afr. L. 220 (1995).

APA 7th ed.

Quansah, E. E. (1995). Ombudsman arrives in botswana: note on the ombudsman act,
1995, the Journal of African Law, 39(2), 220-225.

Chicago 17th ed.

E. K. Quansah, "Ombudsman Arrives in Botswana: A Note on the Ombudsman Act, 1995, The
," Journal of African Law 39, no. 2 (1995): 220-225

McGill Guide 9th ed.

E K Quansah, "Ombudsman Arrives in Botswana: A Note on the Ombudsman Act, 1995, The "
(1995) 39:2 J Afr L 220.

AGLC 4th ed.

E K Quansah, 'Ombudsman Arrives in Botswana: A Note on the Ombudsman Act, 1995, The '
(1995) 39(2) Journal of African Law 220.

MLA 8th ed.

Quansah, E. K. "Ombudsman Arrives in Botswana: A Note on the Ombudsman Act, 1995, The
." Journal of African Law, vol. 39, no. 2, 1995, p. 220-225. HeinOnline.

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E K Quansah, 'Ombudsman Arrives in Botswana: A Note on the Ombudsman Act, 1995, The '
(1995) 39 J Afr L 220

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THE ONmUDsmAN ARRrvEs iN BOTSWANA: A NOTE ON THE ONBuDSmAN AcT,
1995
The enactment of the Ombudsman Act, 1995,' marks Botswana's belated,
albeit welcome, membership of the world-wide movement to enhance gov-
ernmental administration.2 The Act brings to fruition the deliberations of an
international conference on the suitability of the Ombudsman institution in
Botswana held in Gaborone in 1993 The need for such an institution to
complement the country's democratic institutions was made clear at that con-
ference by the then Minister for Presidential Affairs and Public Administration
who was quoted as saying4:
"The wide acceptance of the Ombudsman institution and the fact that it has been
incorporated in recent constitutional reforms in other countries requires that we
in Botswana give serious consideration to it at this point in time."

Having given the necessary consideration to the need for the institution, the
legislature has set out the machinery in the Act for the operation of the
Ombudsman.

Appointment and tenure of the Ombudsman

The Ombudsman is to be appointed by the President after consultation with
the Leader of the Opposition in the National Assembly. Such a person shall not
be a member of the National Assembly, local authority, or a candidate for
election as a member of such institutions.5 Before the enactment of the Act it
was suggested 6 that the country should explore the French practice of appointing
an Ombudsman from the opposition given the preponderance of the ruling
party. That preponderance has since been somewhat eroded by the results of
the 1994 General Election in which the opposition made significant inroads into
the dominance of the ruling party.7 The present provision seems to strike a
compromise by providing for consultation with the Leader of the Opposition.
One hopes his views will not be treated with disdain so as not to embroil the
appointment of the Ombudsman in political controversy. The executive control
of the appointment of the Ombudsman has been explained on the ground, inter
alia, that his position is by its very nature politically sensitive because of his wide-
ranging powers to investigate the workings of government and in developing
countries where government officials are often inexperienced or poorly educated,
it may be deemed necessary for executive control to be maintained so that, for
example, the Ombudsman's jurisdiction and investigative powers remain within
I Act No. 5 of 1995. Date of commencement to be made by notice in the Government Gazette.
2 See M. F. Bishai, "Enhancing accountability-a comparative analysis of the Ombudsman
institution", Public Sector Management and Private Sector Development Division, The World Bank,
1992.
3 Organized by the Department of Political and Administrative Studies, University of Botswana
in November 1993.
1 See the Daiy News, 5 November, 1993, No.209 at 1.
5 S. 1(3).
6 See V. Ayeni, "An Ombudsman for Botswana?" paper presented at the international conference
on the feasibility of the Ombudsman institution in Botswana in Gaborone, November 1993 at 24.
7 In the 1994 general elections, the opposition party won 13 of the 40 elected seats, an increase
of ten seats from the previous Parliament.
Vol. 39, No. 2 Statute Aotes
limits acceptable to the government.8 The same reasoning seems to have
influenced the Botswana provision.
The Ombudsman is to hold office for a four-year duration during which
period his security of tenure is, with the necessary modification, the same as a
High Court judge.9 This provision, coupled with section 9(1) which provides
that the incumbent is not to be subject to the direction or control of any other
person or authority and which also ousts the jurisdiction of the courts with
regard to any proceeding conducted by him, will ensure his complete in-
dependence. There is no specific qualification for the appointment to the office
but the novelty of the institution will demand that the first incumbent of the
post should be familiar with the operation of the office and it is submitted that
the Government should be urged to appoint a non-national with the necessary
experience, such as a retired Ombudsman from another country, to undertake
the initial establishment and operation of the office with a national as an
understudy for the four-year duration of the incumbent's tenure.' This will be
nothing new as a precedent exists in the appointment of the first Director of the
Directorate on Corruption and Economic Crime."

Matters subject to investigation

Subject to section 3(l) of the Act, the Ombudsman may investigate any action
taken by or on behalf of a government department or other authority, being
action taken in the exercise of administrative functions of that department or
authority. The investigation may be set in motion by a complaint brought by a
member of the public who claims to have sustained injustice in consequence of
maladministration in connection with action so taken by the department con-
cerned. The section also gives the Ombudsman a discretion in other circumstances
to investigate on his own motion an action on the ground that some person has
or may have sustained injustice.
Maladministration seems to be the prime reason for a complaint. What
amounts to maladministration will involve multifarious facets of an administrator's
work. A good pointer will be the "Crossman Catalogue", 2 although ad-
ministrative shortcomings extend further than the examples listed there. 3 Ex-
perience in other countries has shown that the lack of a full definition is a
deliberate device to give the Ombudsman a wide discretion to determine
the aspects of the work of government departments which can amount to

8 See J. Hatchard, "The institution of the Ombudsman in Africa with special reference to
Zimbabwe", 35 I.CLQ. 255 at 258.
9 See s. 97(2) of the Constitution by which judges can only be removed from office for inability
to perform their functions due to infirmity of body or mind or from any other cause or for
misbehaviour.
10 Other countries did the same at the inception of their institution; for example, Zimbabwe
appointed a Zambian High Court judge as its first Ombudsman: see Hatchard, op. cit., 261.
See E. K. Quansah, "Botswana's Corruption and Economic Crime Act 1994-some comments",
(1994) 38J.A.L 191.
12 See the address of Sir Edmund Compton, the first Parliamentary Commissioner for Ad-
ministration in England to the Society of Public Teachers of Law, (1968) XJSPTL(NS) 101 at 103.
The "Crossman Catalogue" refers to certain qualities that were said by Mr Crossman, the
then Lord President of the Council, during the debates on the Parliamentary Commissioner for
Administration Bill in England as amounting to maladministration. These qualities include inter alia
bias, neglect, ineptitude and arbitrariness.
13 See G.E. Caiden, "What really is public maladministration?" (1991) 51 Public Administration
Reviv at 6 where some 180 possible factors that may amount to maladministration are listed.
 Statute Notes [1995] J.A.L.
4
maladministration. What would have passed as a prime "suspect" for in-
vestigation-official corruption-has already been handed over to the Directorate
on Corruption and Economic Crime.
The Ombudsman is precluded by section 3(2) of the Act from conducting an
investigation into any action in respect of which the person aggrieved has or
had: (a) a right of appeal, reference, or review to or before a tribunal constituted
by or under any law in force in Botswana; or (b) a remedy by way of proceedings
in any court of law. These provisions notwithstanding, the Ombudsman is given
a discretion to investigate complaints if he is satisfied that in the particular
circumstances it is not reasonable to expect the complainant to resort or to have
resorted to the remedies available to him, and in any case he is not precluded
from investigating any complaint by reason only that it is open to the aggrieved
person to apply to the High Court for redress under section 18 of the Con-
stitution."5
In ajurisdiction in which most of the population are illiterate, let alone aware
of their rights, this discretion can be a vital tool in addressing the concerns of
such complainants.

Matters not subject to investigation

Section 4 excludes the Ombudsman altogether from some areas of gov-
ernmental activity. These include complaints relating to matters certified by the
President or a Minister to affect relations or dealings between the Government
of Botswana and any other government or international organization; action
taken for the purposes of protecting the security of the state or of investigating
crime; the commencement or conduct of civil or criminal proceedings in any
court; actions taken with respect to orders or directions to the police and defence
forces or any member thereof. The exclusion of these forces, especially the
police, raises some concerns, for as has been pointed out by a learned writer,
"... it is precisely in these spheres of governmental activity that the ordinary
citizen can be subjected to the most dramatic abuses of administrative power". 6
Such abuse was amply demonstrated by the high-handed reaction of the police
to the recent illegal demonstrations by students to press for a speedy investigation
and arrest of the perpetrators of a ritual murder of a schoolgirl in Mochudi,
which culminated in some deaths.'7 Whilst one cannot quarrel with the executive's
right to deploy these forces as it deems fit, one would have liked their actions
in some instances to be subjected to the scrutiny of the Ombudsman. The
readily-available excuse of "security reasons" may be a convenient cloak to hide
serious abuses of power by these Forces.

Manner of making a complaint and procedure for investigation

thereof
Section 5 provides that complaints and requests for investigation are to be
made in writing direct to the Ombudsman. A complaint may be made by the
14See for example, D. C.M. Yardley, Prindples
of Administrative Law, 2nd ed., London, 1986, at
221 commenting on the lack of a definition of "maladministration" in the English Parliamentary
Commissioner Act, 1967.
15 The said section deals with redress for contraventions of the fundamental human rights and
freedoms provisions.
16Hatchard, op. cit., 262.
17See The Midweek Sun, 22 February, 1995, at 1.
Vol. 39, No. 2 Statute Notes
complainant, or by the President, or any Minister or Member of the National
Assembly with the consent of the complainant. Where any person by whom a
complaint might have been made has died or is for any reason unable to act
for himself, the complaint may be made by his personal representatives or by a
family member or other suitable representative." In determining whether to
initiate, continue or discontinue an investigation, the Ombudsman, subject to
section 3, shall act in accordance with his own discretion, and any question
whether a complaint is duly made under the Act shall be determined by him. 9
Without prejudice to this discretion, the Ombudsman may refuse to initiate, or
may discontinue, any investigation if it appears to him that: (a) the complaint is
frivolous or vexatious or is not made in good faith; (b) the subject matter of the
complaint is trivial; (c) the person aggrieved has no sufficient interest in the
subject matter of the complaint; or (d) the making of the complaint
20 has, without
reasonable cause, been delayed for more than 12 months.
An interesting provision which will enhance the rights of persons in custody
is that provided by section 5(2) which allows such persons and inmates in mental
hospitals and similar institutions to send their complaints to the Ombudsman
without them being opened by the authorities of those institutions. This will
prevent the censorship of any complaints which inmates may have about their
place of incarceration. However this provision conflicts with the current prison
regulations which permit the prison authorities to prevent prisoners, inter alia,
from sending out letters if in their view the contents are objectionable. 21 This
regulation must be amended if the desired free flow of complaints to the
Ombudsman from inmates of prisons and similar detention facilities is to be
achieved.
Section 6 provides for any investigation to be in private and the procedure
for conducting it to be determined by the Ombudsman, taking the peculiar
circumstances of the particular case into account including determining whether
any person should be legally represented or not. In conducting an investigation
the Ombudsman has the powers of the High Court in respect of attendance and
examination of witnesses and the production of documents.22 One hopes this
will not encourage too much formalism and that investigations will rather be
conducted in as informal a manner as possible. The Ombudsman is however
required to afford to the principal officer of the department under investigation,
and any other person who is alleged to have taken or authorized the action in
question, an opportunity to comment on the allegations made. In order to make
information from government departments freely available to the Ombudsman,
the Act has lifted the obligation to maintain secrecy and other restrictions
imposed by law on disclosure of information obtained by or furnished to persons
in the public service. Information relating to proceedings of the Cabinet or any
committee thereof are exempted from disclosure. Furthermore, the Attorney-
General may, by notice to the Ombudsman, seek to exclude documents on the
grounds that disclosure would be contrary to public interest in relation to defence,
external relations or internal security. This veto power may be viewed as

18 S. 3(8).
19 S. 3(4).
0 S. 3(5).
21 See s.43(1) Prison Regulations, S.I. 27 of 1980 made under s. 146 of the Prisons Act, 1980
(Cap. 21,03) 1987 Rev.
22 S. 7(2).
 Statute Noe [1995] JAL.
23
insurance against undue interference with the ordinary processes of government.
However, it should be sparingly used in order not to stultify the work of the
Ombudsman.
Section 10 reinforces the notion of minimal interference by providing that the
conduct of an investigation will not affect any action taken by the department
or authority concerned nor will it prevent the taking of further action on the
matter under investigation.
Proceedings after investigation
Section 8 provides that after conducting an investigation, the Ombudsman
shall send a report of the results of the investigation to the principal officer of
the department or authority concerned and, if of the opinion that injustice has
been caused to the person aggrieved in consequence of maladministration, shall
make such recommendations as he thinks fit for remedying the injustice caused.
Where such recommendations are not carried out within a reasonable time, or
if carried out do not appear adequate to remedy the injustice, the Ombudsman
may make a special report to the National Assembly. The ultimate enforcing
instrument is therefore a political one and the effectiveness of the Ombudsman
will eventually depend on the influence which he has with the National Assembly.
It does not seem that the Ombudsman is obliged to report his findings to inform
the complainant if he decides not to investigate a complaint duly lodged with
him. Perhaps the regulations contemplated under section 15 of the Act will take
care of this omission. Such a requirement will assuage the complainant's feeling
of injustice.

Overview
The Act is similar in many respects to its predecessors in other African
countries.24 What is surprising is the time it has taken the country to realize the
need for the institution. The general perception that Botswana is a shining
example of an African country where governmental institutions work efficiently
has been shattered by recent events2 which have tested the resilience of the
existing institutions to breaking point and revealed structural weaknesses in them.
Whether or not the Ombudsman will help to bolster the declining image of
public institutions will depend on the funding it receives from the Government.
Although section 13 makes the administrative expenses of the office of the
Ombudsman chargeable on the consolidated fund, the acid test will come in the
size of the allocation which the National Assembly is prepared to vote to the
office, taking into account pressures from other sectors of the economy and
the Government's developmental priorities. A demonstrative commitment to
adequate funding will ensure that this newest addition to the democratic in-
stitutions of Botswana does not have a stunted growth.

23 This was said to be the reason behind a similar provision in the English Parliamentary
Commissioner Act 1967. See D. Williams, "Parliamentary Commissioner Act 1967" (1967) 30
M.L.R. 547 at 551.
24 For example, Permanent Commission of Enquiry, 1966 (Tanzania), Commission for In-
vestigation Act, 19674 (Zambia) and Ombudsman Act, 1982 (Zimbabwe).
25 See for example, N. Raphael, et al., "Public sector management in Botswana-lessons in
pragmatism", Staff Working Paper 709, The World Bank, Washington, D.C. 1984.
21 See Quansah, op. Cit.
Vol. 39, No. 2 Statute Notes
Batswana are not generally litigious and have the tendency of resolving disputes
through institutions outside the normal adversarial system of the courts. The
Ombudsman will conveniently fit into this national psyche and it is hoped will
enhance governmental accountability to the electorate.
E. K. QuANSAH*

* University of Botswana.