With just a year into the office, Ombudsman Augustine Makgonatsotlhe is already firing shots at his office and calling for rigorous transformation.
In an exclusive interview with WeekendPost this week the Ombudsman fired from the hip, saying that the office was in dire need of transformation; has to be given more powers; more resources and most importantly it should be given space to be totally independent.
“In an ideal situation, an institution of this nature (Ombudsman) should be completely independent; and that means legally independent, operationally independent, and even in terms of budgets, it should be divorced from the executive; so that at the end of the day they get the budget from parliament and also report directly to parliament with no connections to the executive,” Makgonatsotlhe pointed out.
He continued: “you know at the moment we are not completely independent. We are only independent in as far as operations or investigations of cases are concerned. Otherwise we rely on public service for everything including personnel, resources so to the extent that in other peoples’ eyes we are completely not independent,” the Ombudsman told WeekendPost. He also pointed out that the country is still confined to the “classical ombudsman” model which only makes recommendations which are not binding.
“I make recommendations in terms of our Ombudsman Act and that is not binding unlike in other countries like South Africa where it is very clear in their constitution that the decisions of the Public Protector are binding.” He added that in that case you cannot ignore them; it is either you comply or when you are dissatisfied with the decision you have to go to court and ask for judicial review. “That’s why in Botswana people say the ombudsman is a toothless bulldog,” he lashed out.
The distinguished qualified legal practitioner also highlighted that the office of the Ombudsman being directly linked with the executive takes away its credibility. He said the office can therefore not be accredited to other international respected bodies like the United Nations body for human rights. A number of countries he said have adopted the modern model of the office of Ombudsman being South Africa, Namibia, Lesotho, Kenya, Tanzania, and Ghana.
The modern model gives the ombudsman more powers and multiple mandates that are not only confined to maladministration like it is in Botswana. “Personally, my belief is that we should go that route. But I am not the one to change the law. It is parliament with its wisdom to decide to change the law. They can move to that.”
Makgonatsotlhe met Thuli Madonsela to benchmark
Makgonatsotlhe is left with only three years of the four year contract awarded him by President Lt. Gen. Seretse Khama Ian Khama. He says he is still settling in the office and part of that being him visiting South Africa’s ex Public Protector, Thuli Madonsela. “I had the opportunity to go to her office and see how they do their investigations. They are not terribly different from the way we are doing our investigations because the Ombudsman and the Public Protector are similar in a way, even though in South Africa they have a bigger mandate than we have in Botswana.”
He said he also managed to see how they interact with other governance institutions like human rights commission as all these institutions are established under chapter 9 of South African constitution. The institutions, he said, are specifically mandated to strengthen the constitutional democracy of South Africa. Makgonatsotlhe said that in South Africa, the Public Protector just investigate maladministration but also investigates corruption and issues of unethical conduct of leadership under the Executive Members Ethics Act which empowers him/her to investigate any unethical conduct done by any member of the executive.
“The thing with them is that they don’t have a Directorate on Corruption and Economic Crime (DCEC) like we have in Botswana; they only deal with a Public Protector.” While he said Botswana has a human rights commission housed under the office of the ombudsman, Makgonatsotlhe cautioned that in an ideal situation a human rights commission has to be a standalone, like in South Africa. “This has created problems in many countries because if you have many mandates its highly likely that one will suffer.”
The issue of his recommendation of Btv biasness
In relation to the report he recently released after carrying out investigations on behalf of Botswana National Front Vice President Prince Dibeela, he says he believes he carried the matter fairly and professionally in terms of the law. He justified his recommendation which stated that Btv was biased against opposition parties in favour of ruling Botswana Democratic Party saying his office investigates all complaints as long as the ombudsman has a jurisdiction on them. “And we do that with no fear or favour. That is the job. I mean it must be done appropriately as we have been assigned to do.”
When asked if it is not likely that the political leadership may feel hard done by his recommendations, and maybe have a problem with it he said “then it is not our problem. It doesn’t bother me at all. For as long as my conscience is clear on the matter. I would have done what I was supposed to do.” The long serving Public Servants also emphasized that it gives logic that decisions or recommendations of the ombudsman should be binding so that the body is taken seriously.
“We should ensure that when it has taken the decision, those decisions are complied with; if it doesn’t it will be as if those decisions were never made. The office should be strengthened to have more meaning to Batswana and make an impact in the governance and administration of the country.”
He added: “The authorities can decide to comply or not as it stands. Like what I said before that’s where really the problem is, they are not forced to comply by the law.”
However he still believes that the ombudsman has moral authority. So for the fact that they have created the office, it is logical also that whatever the decision it comes with should be complied with or else that will have a negative effect on the governance of the country. He continued: “Notwithstanding, if there is no compliance, what should happen is that, the ombudsman should do a special report on that same matter which he has to submit to parliament to tell them I have done this, I came to this conclusion and I made this recommendations but there has been no compliance. Then it will be up to parliament to see what to do.”
Makgonatsotlhe on DCEC, IEC, Auditor General, Parliament
Makgonatsotlhe also says he wants to see the strengthening of all governance institutions particularly Directorate on Corruption and Economic Crime (DCEC), Independent Electoral Commission (IEC), the Auditor General and Parliament. He said these are institutions that to him are very critical to strengthening democracy and governance. “When we have those institutions in a way that spill off when things are not running properly the economy will grow because investors will come and they will be sure of their investments. The rule of law will flourish when proper governance is there. The investors want to go to a place which is very safe and properly run and they are sure that they are protected and their investments are also protected that is my parting shot,” he said.
Meanwhile Leader of opposition and Umbrella for Democratic Change (UDC) President Duma Boko has repeatedly criticized the Ombudsman together with DCEC, IEC, Directorate on Intelligence and Security Services (DISS) saying in their current form they are useless and therefore call for totally disbanding and overhauling that may be effected when his party takes office.
The office of the Ombudsman came into existence around December 1997 after the law establishing the office was promulgated in 1995 and later assented by the then President Sir Ketumile Masire who is now late. The late Lethebe Amos Maine was the country’s first ombudsman and the second was Ofentse Lepodise (also late) while the third was Festinah Bakwena, being the incumbent, Makgonatsotlhe is the fourth.
The Directorate of Public Prosecutions (DPP)’s decision to reject and appeal the High Court’s verdict on a case involving High Court Judge, Dr Zein Kebonang has frustrated the Judicial Service Commission (JSC) and Judge Kebonang’s back to work discussions.
JSC and Kebonang have been in constant discussions over the latter’s return to work following a ruling by a High Court panel of judges clearing him of any wrong doing in the National Petroleum Fund criminal case filed by the DPP. However the finalization of the matter has been hanged on whether the DPP will appeal the matter or not – the prosecution body has since appealed.
Botswana Democratic Party (BDP) top brass has declined a request by Umbrella for Democratic Change (UDC) to negotiate the legal fees occasioned by 2019 general elections petition in which the latter disputed in court the outcome of the elections.
This publication is made aware that UDC Vice President Dumelang Saleshando was left with an egg on his face after the BDP big wigs, comprising of party Chairman Slumber Tsogwane and Secretary General Mpho Balopi rejected his plea.
“He was told that this is a legal matter and therefore their (UDC) lawyer should engage ours (BDP) for negotiations because it is way far from our jurisdiction,” BDP Head of Communications, Kagelelo Kentse, told this publication.
This spelt doom for the main opposition party and Saleshando who seems not to have confidence and that the UDC lawyers have the dexterity to negotiate these kind of matters. It is not clear whether Saleshando requested UDC lawyer Boingotlo Toteng to sit at the table with Bogopa Manewe, Tobedza and Co, who are representing the BDP to strike a deal as per the BDP top echelons suggested.
“From my understanding, the matter is dealt with politically as the two parties are negotiating how to resolve it, but by far nothing has come to me on the matter. So I believe they are still substantively engaging each other,” Toteng said briefly in an interview on Thursday.
UDC petitioners saddled with costs after mounting an unprecedented legal suit before the court to try and overturn BDP’s October 2019 victory. The participants in the legal matter involves 15 parliamentary candidates’ and nine councillors. The UDC petitioned the court and contested the outcome of the elections citing “irregularities in some of the constituencies”.
In a brief ruling in January 2020, Judge President Ian Kirby on behalf of a five-member panel said: “We have no jurisdiction to entertain these appeals. These appeals must be struck out each with costs including costs of counsel”. This was a second blow to the UDC in about a month after their 2019 appeals were dismissed by the High Court a day before Christmas Day.
This week BDP attorneys decided to attach UDC petitioners’ property in a bid to settle the debts. UDC President Duma Boko is among those that will see their property being attached with 14 of his party members. “We have attached some and we are on course. So far, Dr. Mpho Pheko (who contested Gaborone Central) and that of Dr, Micus Chimbombi (who contested Kgalagadi South) will have their assets being sold on the 5th of February 2021,” BDP attorney Basimane Bogopa said.
Asked whether they met with UDC lawyers to try solve the matter, Bogopa said no and added. “Remember we are trying to raise the client’s funds, so after these two others will follow. Right now we are just prioritising those from Court of Appeal, as soon as the high court is done with taxation we will attach.”
Saleshando, when contacted about the outcomes of the meeting with the BDP, told WeekendPost that: “It would not be proper and procedural for me to tell you about the meeting outcomes before I share with UDC National Executive Committee (NEC), so I will have to brief them first.”
UDC NEC will meet on the 20th of next month to deal with a number of thorny issues including settling the legal fees. Negotiations with other opposition parties- Alliance for Progressives and Botswana Patriotic Front (BPF) are also on the agenda.
Currently, UDC has raised P44 238 of the P565 000 needed to cover bills from the Court of Appeal (CoA). This is the amount in a UDC trust account which is paltry funds equating 7.8 per cent of the overall required money. In the past despite the petitioners maintaining that there was promise to assist them to settle legal fees, UDC Spokesperson, Moeti Mohwasa then said the party has never agreed in no way to help them.
“We have just been put in debt by someone,” one of the petitioners told this publication in the past. “President’s (Duma Boko) message was clear at the beginning that money has been sourced somewhere to help with the whole process but now we are here there is nothing and we are just running around trying to make ends meet and pay,” added the petitioner in an interview UDC NEC has in December last year directed all the 57 constituencies to each raise a minimum of P10, 000. The funds will be used to settle debts that are currently engulfing the petitioners with Sheriffs, who are already hovering around ready to attach their assets.
The petitioners, despite the party intervention, have every right to worry. “This is so because ‘the deadline for this initiative (P10, 000 per constituency) is the end of the first quarter of this year (2021),” a period in which the sheriffs would have long auctioned the properties.
President of the Umbrella for Democratic Change (UDC) Duma Boko’s alliance with former President Lt Gen Ian Khama continues to unsettle some quarters within the opposition collective, who believe the duo, if not managed, will once again result in an unsuccessful bid for government in 2024.
While Khama has denied that he has undeclared preference to have Boko remaining as leader of UDC, many believe that the two have a common programme, while other opposition leaders remain on the side-lines.