ADMIN LAW NOTES- NDZINGE-MAKHAMISA’S GROUP
PART 2
THE OMBUDSMAN
Function
To investigate citizen complaints against any injustice sustained at the hands of public
officials.
Purpose
The office is part of the justice architecture with a focus on promoting administrative
justice by investigating allegations of mal-administration within the public sector. As a
dispute resolution mechanism alternative to the courts, the Office discharges its
mandate by investigating complaints of improper administrative conduct and
recommending remedial actions where, in the opinion of the Ombudsman, the
complainant has suffered injustice arising from the administrative conduct.
Depending on the jurisdiction, an ombudsman's decision may or may not be legally
binding. Even if not binding, the decision typically carries considerable weight.
6 Key Tenants of the Office of the Ombudsman
- Independent
- Impartial
- Have easy access to official information on which administrative decisions are based
- Easily accessible to the general public
- Its procedures must be simple, informal and flexible
- Must be able to provide redress for people who come to it with grievances
- Must receive institutional support to ensure enforceability and effectiveness
Ombudsman in Botswana
- Established in 1995, through the enactment of the Ombudsman Act.
Independence and Impartiality
- In Botswana it is created through an Act of Parliament
- President appoints Ombudsman after consultation with Leader of the Opposition.
(Section 2(2))
- Disqualifications provided by 2(3) and 2(4)-
- MP
- local authority
- Candidate for either
- Any other public office.
Security of Tenure
- Section 2(5) not removed if performs duty—has a four year term.
- Same protections offered to high Court Judges, as per Constitution
Procedures and Accessibility
Investigations
- Empowered to investigate ‘any action taken by or on behalf of a government
department or other authority to which the Act applies, being taken in the exercise of
administrative functions of that department or authority. (S.3)
- Subject to provisions of the Act – exercises discretion with regard to initiating and
discontinuing investigations. Sect 3(4)
- Shall operate under own instructions/directions/control. – Proceedings shall not be
questioned in any court of law(S.9(1))
- Investigations directed to---Any division within executive arm of government. And
including parastatals, as they also have potential for corruption etc.
- Accessing Ombudsman’s Power to Investigate (S.3(1))
- Direct Complaint
- Referral from President/Minister
- Own Motion
Subject matter
Acts taken in the exercise of administrative functions.. should be in a way which
amounts to maladministration—resulting in injustice to the complainant.—
maladministration could also be a mistake of fact or law.
The object of Ombudsman is to redress injustice that a member of the public might have
suffered at the hands of a government department.
The injustice must relate to maladministration of a government official—therefore only
serious and substantial complaints will be lodged.
Section 3(4) of the Act---can choose not to act if the complaint is:
- Frivolous ie not serious
- Subject matter is trivial
- Person aggrieved has no sufficient interest in the subject matter of complaint
- Making of complaint, without reason, was delayed for 12 months. Sect. 3(5)
- Member of public should have exhausted all administrative and judicial remedies, if
accessible if not may by pass those remedies if the ombudsman also believes that it is
not reasonable for one to go through those local remedies. Must look at circumstances
of each case.. the complaints must also be in writing. (3(2) and 3(3))
Matters excluded from investigation (Sec 4)
- Matters involving Botswana and other countries
- Action taken for security of the country
- Matters involving the police or the Army.
- Commencing/Investigating court proceedings(civil or criminal) is also something the
Ombudsman cannot do.
- Appointments made by the President/Ministers in relation to such officers.
- Where aggrieved party has recourse to tribunal/court with respect to the particular
matter.
- Commercial or contractual matters.
- Matters involving Botswana and foreign relations with other states and international
actors.
7. Institutional Support
Investigations, Recommendations, Annual reports
- Investigation—must be private, should also afford the principal officer of any
department or authority concerned an opportunity to comment on any allegation he is
about to investigate. (6(2))
- Can obtain information in any manner he thinks fit. Sec 6(3) and 7(1)
- Can request infor/documentation from any Minister/Govt official/Gvt authority7(1)
- Can subpoena any who he believes can assist him in his investigation 7(2)
Disclosure of Information
- Section 7(3)-Sect 7(5)
- Cabinet proceedings is privileged, and no one can be compelled to give that
information. – Certificate of Secretary of Cabinet, approved by President, suffices.
- Disclosure of information clauses provided for in other pieces of legislation shall not
apply to other information- can be requested by the Ombudsman- must be produced(no
benefit of privilege as would be provided in a court of law)
- Attorney General may give notice in relation to requested information- that it would be
contrary to public interest in relation to defence/external relations/internal security. - At
conclusion—sends report of results of investigation to the principal officer of the
department/ authority that he investigated. Not required to send report to complainant
but it is only fair that he does.
- Must make recommendations as he deems appropriate for remedying an injustice, if
any, but can only recommend. Recommendations must be well reasoned and balanced.
- But a department not legally bound to accept or implement the.
- Section 8(2) however where the department in a reasonable time does not implement
those decisions he may lay a special report to parliament. It may exert moral and official
pressure on such a department.
- Has to make annual report to President, and that report is also laid before the national
Assembly.
- Must detail what he did during the year—and breakdown each case handled.
