Mesh Moeti this week learnt the true definition of the phrase, ‘toothless bulldog’ after he was summoned to the office of the Ombudsman and told categorically why the Ombudsman could not entertain his complaint concerning the P58 million acquisition of Tautona Lodge in Gantsi. The Ombudsman, Augustine Makgonatsotlhe’s office, has no jurisdiction over the matter.

Moeti had protested the decision by the government to purchase Tautona lodge from Christian De Graaf, a former cabinet minister and member of the ruling Botswana Democratic Party (BDP), whilst the country was reeling from the adverse impact of the COVID-19 pandemic. The gist of his complaint pivots on prioritization and poor governance as far as the lodge’s procurement is concerned.
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“Our final position, therefore, is that the Ombudsman has no jurisdiction over this matter in so far as it relates to issues of contractual or commercial dealings with members of the public, and is not against an authority identified under Section 3 (6)”, reads a response from Makgonatsotlhe for the attention of Moeti.

Section 3() referred to reads: “an authority empowered to determine the person with whom any contract or class of contracts shall be entered into on behalf of the Government of Botswana.” According to the Ombudsman, this section identifies the authorities to which the Act applies and over which the Ombudsman can exercise jurisdiction on contractual and commercial matters.

The Ombudsman, in his response to Moeti, situates his jurisdiction on authorities such as the Public Procurement and Asset Disposal Board (PPADB) and Ministerial Tender Committees (MTCs) “…and not ordinary government departments. Therefore, with a proper background and good grounds for complaint as stated above, a complaint of this nature will be justiciable before the Ombudsman only if made against such authorities,” he writes.

Makgonatsotlhe, in addressing Moeti’s complaint, says he focused on two issues: whether a proper complaint has been made; and whether the Ombudsman has jurisdiction to investigate the complaint. The Ombudsman writes, “In this regard, we considered the general tenor of the allegations to determine if they raised the kind of complaint contemplated by Section 3(1) (a) of the Ombudsman Act. The said provision allows the Ombudsman to investigate actions by government departments where a member of the public “claims to have sustained injustice in consequence of maladministration in connection with the action so taken.”

According to the Ombudsman, a member of the public should, in terms of this provision, allege that he has sustained injustice on account of maladministration as a consequence of the action complained about. “It is our view, therefore, that to lodge a complaint under this provision, a complainant must show, or at least allege that he has sustained an injustice….”

Makgonatsotlhe says Moeti should identify himself, state the injustice suffered, the maladministration committed, and the government department which committed the mismanagement. “In the instant, it is our view that you have failed on all the elements stated.”

“Though you have complained, you have not demonstrated how the purchase of Tautona Lodge affects you, either personally or in a representative capacity. You, of course, use broad concepts like “public interest”,” transparency and good governance”, and “whether the purchase was an urgent project of national interest”, none of which places you in the position of a complainant as contemplated by Section 3 (1) (a).

The Ombudsman further writes: “You do not claim any right to represent the public as contemplated by Section 3 (1) (b), i.e. as a President, Minister or a Member of the National Assembly; or Section 3 (8), as a personal representative or member of the family of any person affected by the actions of the government department, if any.”

Furthermore, Makgonatsotlhe opines that Moeti’s complaint comprises a wide range of questions and does not point to any specific issue/action of maladministration committed by the government. In his view, Moeti could get answers to some of his questions from the relevant departments and parastatals such as the Directorate of Intelligence Services (DIS), PPADB, and the Ministry of Presidential Affairs, Governance and Public Administration. The Ombudsman also complains that it is not clear which government department the complaint is about as currently presented.

Meanwhile, Makgonatsotlhe pricks on issues that would have been dealt with if the Ombudsman had teeth. The key questions, he points out, are – was the procurement of the lodge above board?; were procurement procedures followed?; was the procurement put to an open tender?; were the farm owners in the vicinity of Gantsi allowed to compete by way of offering their farms for sale?

However, the Ombudsman says these are critical issues of procurement that could be best answered, through appropriate questioning, by the procuring entity and those in charge of government procurement such as PPADB and the MTCs. “… a proper foundation for compliant could have been laid by engaging them, but was not.”

A DISAPPOINTED MOETI RESPONDS 

Asked about the judicial missive from the Ombudsman’s Office, Moeti said, “It is a sad day when the Office of a Public Protector hides behind technicalities to shield those in authority from questions that ordinary citizens are asking. It cannot be that such a weighty matter of national importance is dismissed so lightly and cynically. It’s quite clear that the attitude of the Office of the Ombudsman on this matter was to look for all the loopholes why they cannot, and should not investigate the matter, and they found those loopholes.”

In a way, Moeti retorts, “this response by the Ombudsman is confirmation that this institution is a hollow structure without any substance. It is the Office of a Public Protector in name only. And unfortunately, this goes for all other supposed oversight institutions in this country. We have institutions that do not stand the test. Where does it happen in a democracy that institutions meant to provide oversight is structured in a manner that insulates those who govern from scrutiny by citizens? How is it acceptable that in a representative democracy, it is deliberately made extremely difficult for a citizen to get answers from those we voted into office? It cannot be said that we are a democracy when the political elite is accountable only to themselves, and not citizens.”

As a way forward, Moeti said, “I think as ordinary citizens, across the entire society, we must now begin a national conversation on how we go about building real democracy, complete with authentic and credible oversight institutions. The status quo is mere deception and cannot be allowed to go on forever.”

THE GENESIS OF THE SAGA

Minister of Presidential Affairs, Governance and Public Administration, Kabo Morwaeng, told parliament recently that the government has purchased through direct appointment, Tautona Lodge for P58 240 000 million from a company called Horseshoe Ranches (Pty) Ltd.

The complaint to the Ombudsman’s Office sought to determine if the procurement of Tautona Lodge followed all the established government processes that ensure transparency and value for money. A former Editor, now a private citizen, Mesh Moeti has appealed to the Ombudsman, Augustine Makgonatsotlhe, to intervene and provide direction.

Moeti had asked if the government put out a public tender notice that it was looking to procure land around the Ghanzi area. Other potential buyers who own similar properties would have wanted to sell could have made an offer.

“If there was no public tender, how did the government know that the owner of Tautona Lodge wanted to dispose of it? In the event there was no tender, we would like your office to make a finding on the fairness and transparency of the process,” reads part of the letter.

Furthermore, clarification on whether the acquisition forms part of the National Development Plan and if parliament had approved a budget is required. The document says if the procurement was budgeted for, how much had been set aside.

OMBUDSMAN ACT FAILS INTERNATIONAL BEST PRACTICE TEST 

When the law was debated in Parliament, Members of Parliament from both the Opposition and the ruling party backbench pointed questions to the then Minister Ponatshego Kedikilwe, who tabled it. They complained that the Ombudsman Act was not adequate, but as always, “the Is had it”, and the law passed.

From the response by Makgonatsotlhe to Moeti, it suffices that when it comes to accountability, often the Botswana system is generally lacking. The means of holding decision-makers and implementing authorities to account should extend beyond elections. Transparency is an enduring theme, for, without information, the public and stakeholders cannot evaluate the quality of decisions and their implementation (Kioe Sheng 2009).

“Transparency can be institutionalized through mandatory requirements to report on the conduct and results of consultation processes, the evidence on which decisions are made, lobbying activity by organized stakeholders, the volume of public complaints. Oversight is another important element of accountability.”

Many observers agree that transparent disclosure of information and open data also enable oversight by third-party watchdog organizations. Finally, accountability is further secured
by providing avenues for recourse, including the obligation to investigate public complaints, protection for whistleblowers, and appeal rights for those adversely affected by government policies.

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