Public Protectors are generally the last wall of defence against Executive excesses. In the words of South Africa’s Chief Justice Mogoeng Mogoeng these stand in the place of the biblical David – for the public against the state/executive power – the Goliath. On the back of a major ruling by South Africa’s Constitutional Court it is reasonable to compare the two countries’ public protectors and the value they add to those they stand to represent. Regrettably the closer one looks, the more it shows Botswana Constitution’s glaring weakness in protecting the Public against the excesses of the Executive.
Powerless & Fearful
The Public Protector in Botswana is called the Ombudsman. The current Ombudsman is a veteran civil servant Festinah Bakwena, who has served as Permanent Secretary and Director of Public Service Management (DPSM). As an administrator she has grown and been groomed to respect the executive and barely has a history of taking it on. Previous Ombudsman are Lithebe Maine and Ofentse Lepodisi-a career civil servant. Both have passed on. The Constitutional provisions that govern and set up the Ombudsman are light and barely give this office the power to hold the executive to account. Essentially, instead of investigating and making major findings and rulings against executive excesses, this office has tended to deal with almost trivial and menial issues of unfair transfers or lack of promotions by civil servants.
Cases that border on corruption and abuse of state resources have barely been given the serious attention they deserve. Effectively this means that the public often tends to have no alternative of reporting corrupt tendencies of leaders of public institutions and those in the Executive. With no power or fearful of the Executive, the Ombudsman has therefore remained irrelevant and unhelpful both as an official and as an institution to which the public should look. As things stand, Botswana is as good as having no Public Protector.
Matters subject to investigation
“Subject to the provisions of this section, the Ombudsman may investigate any action taken by or on behalf of a government department or other authority to which this Act applies, being action taken in the exercise of administrative functions of that department or authority, in any case where— (a) a complaint is made to the Ombudsman by a member of the public who claims to have sustained injustice in consequence of maladministration in connection with the action so taken; (b) the complaint is referred to the Ombudsman, with the consent of the person who made it, by the President, a Minister or any member of the National Assembly with a request to conduct an investigation thereon; and (c) in any other circumstances in which the Ombudsman on his own motion considers it necessary to investigate the action on the ground that some person has or may have sustained such injustice.”
Matters s/he cannot investigate
“Action taken in respect of appointments to offices or other employment in the service of the Government of Botswana or appointments made by or with the approval of the President or any Minister, and action taken in relation to any person as the holder or former holder of such office, employment or appointment; (e) action taken with respect to orders or directions to the Botswana Police Force or Botswana Defence Force or member thereof; (f) the grant of honours, awards or privileges within the gift of the President among others.” Just recently there was a furore in Parliament that demonstrated the Executive’s comfort with the limited powers that the Ombudsman has locally when the matter of the appropriateness of President Ian Khama continuing to fly himself on military aircraft reared its ugly head again. Former Ombudsman Maine had previously ruled that it was not advisable that he flew himself. This could not be enforced because there is no Constitutional provision that declares Ombudsman rulings to be binding and permanent.
Powerful & brave
As a Public Protector, Thuli Madonsela has braved and towered upon intimidation and harassment by the state and related to eventually see to it that her findings are respected and as well as the remedial actions she recommended. Backed by a highly independent and professional judiciary where the executive tended to undermine her authority the courts have extolled her powers and delivered justice for the public good. Below we reproduce part of South Africa’s Chief Justice Mogoeng when ruling over the Public Protectors powers with regard to the Nkandla matter in which President Jacob Zuma has for some time refused to pay back money used for extra developments in his estate.
“The office of the Public Protector was created to “strengthen constitutional democracy in the Republic”. To achieve this crucial objective‚ it is required to be independent and subject only to the Constitution and the law. It is demanded of it‚ as is the case with other sister institutions‚ to be impartial and to exercise the powers and functions vested in it without fear‚ favour or prejudice.48 I hasten to say that this would not ordinarily be required of an institution whose powers or decisions are by constitutional design always supposed to be ineffectual. Whether it is impartial or not would be irrelevant if the implementation of the decisions it takes is at the mercy of those against whom they are made. It is also doubtful whether the fairly handsome budget‚ offices and staff all over the country and the time and energy expended on investigations‚ findings and remedial actions taken‚ would ever make any sense if the Public Protector’s powers or decisions were meant to be inconsequential.
The constitutional safeguards in section 181 would also be meaningless if institutions purportedly established to strengthen our constitutional democracy lacked even the remotest possibility to do so. We learn from the sum-total of sections 18149 and 18250 that the institution of the Public Protector is pivotal to the facilitation of good governance in our constitutional dispensation. In appreciation of the high sensitivity and importance of its role‚ regard being had to the kind of complaints‚ institutions and personalities likely to be investigated‚ as with other Chapter Nine institutions‚ the Constitution guarantees the independence‚ impartiality‚ dignity and effectiveness of this institution as indispensable requirements for the proper execution of its mandate. The obligation to keep alive these essential requirements for functionality and the necessary impact is placed on organs of State. And the Public Protector is one of those deserving of this constitutionally-imposed assistance and protection. It is with this understanding that even the fact that the Public Protector was created‚ not by national legislation but by the supreme law‚ to strengthen our constitutional democracy‚ that its role and powers must be understood. The office of the
Public Protector is a new institution – different from its predecessors like the “Advocate General”‚ or the “Ombudsman” and only when we became a constitutional democracy did it become the “Public Protector”. That carefully selected nomenclature alone‚ speaks volumes of the role meant to be fulfilled by the Public Protector. It is supposed to protect the public from any conduct in State affairs or in any sphere of government that could result in any impropriety or prejudice. And of course‚ the amendments52 to the Public Protector Act have since added unlawful enrichment and corruption53 to the list. Among those to be investigated by the Public Protector for alleged ethical breaches‚ are the President and Members of the Executive at national and provincial levels.
The Public Protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption‚ unlawful enrichment‚ prejudice and impropriety in State affairs and for the betterment of good governance. The tentacles of poverty run far‚ wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason‚ the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice‚ and teeth that would bite corruption and abuse excruciatingly. And that is the Public Protector. She is the embodiment of a biblical David‚ that the public is‚ who fights the most powerful and very well-resourced Goliath‚ that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anticorruption and clean governance.
Hers are indeed very wide powers that leave no lever of government power above scrutiny‚ coincidental “embarrassment” and censure. This is a necessary service because State resources belong to the public‚ as does State power. The repositories of these resources and power are to use them‚ on behalf and for the benefit of the public. When this is suspected or known not to be so‚ then the public deserves protection and that protection has been constitutionally entrusted to the Public Protector. This finds support in what this Court said in the Certification case: “[M]embers of the public aggrieved by the conduct of government officials should be able to lodge complaints with the Public Protector‚ who will investigate them and take appropriate remedial action.”
In the execution of her investigative‚ reporting or remedial powers‚ she is not to be inhibited‚ undermined or sabotaged. When all other essential requirements for the proper exercise of her power are met‚ she is to take appropriate remedial action. Our constitutional democracy can only be truly strengthened when: there is zero-tolerance for the culture of impunity; the prospects of good governance are duly enhanced by enforced accountability; the observance of the rule of law; and respect for every aspect of our Constitution as the supreme law of the Republic are real. Within the context of breathing life into the remedial powers of the Public Protector‚ she must have the resources and capacities necessary to effectively execute her mandate so that she can indeed strengthen our constitutional democracy.
Her investigative powers are not supposed to bow down to anybody‚ not even at the door of the highest chambers of raw State power. The predicament though is that mere allegations and investigation of improper or corrupt conduct against all‚ especially powerful public office-bearers‚ are generally bound to attract a very unfriendly response. An unfavourable finding of unethical or corrupt conduct coupled with remedial action‚ will probably be strongly resisted in an attempt to repair or soften the inescapable reputational damage. It is unlikely that unpleasant findings and a biting remedial action would be readily welcomed by those investigated. If compliance with remedial action taken were optional‚ then very few culprits‚ if any at all‚ would allow it to have any effect. And if it were‚ by design‚ never to have a binding effect‚ then it is incomprehensible just how the Public Protector could ever be effective in what she does and be able to contribute to the strengthening of our constitutional democracy. The purpose of the office of the Public Protector is therefore to help uproot prejudice‚ impropriety‚ abuse of power and corruption in State affairs‚ all spheres of government and State-controlled institutions.
The Public Protector is a critical and indeed indispensable factor in the facilitation of good governance and keeping our constitutional democracy strong and vibrant. Our Constitution is the supreme law of the Republic. It is not subject to any law including national legislation unless otherwise provided by the Constitution itself.57 The proposition that the force or significance of the investigative‚ reporting or remedial powers of the Public Protector has somehow been watered down by the provisions of the Public Protector Act‚ is irreconcilable with the supremacy of the Constitution‚ which is the primary source of those powers. To put this argument to rest‚ once and for all‚ its very bases must be dealt with. The first basis is grounded on section 182(1) in so far as it provides that “the Public Protector has the power‚ as regulated by national legislation”. The second is section 182(2) which says that “the Public Protector has the additional powers and functions prescribed by national legislation”.
The constitutional powers of the Public Protector are to investigate irregularities and corrupt conduct or practices in all spheres of government‚ to report on its investigations and take appropriate remedial action. Section 182(1) and (2) recognises the pre-existing national legislation which does regulate these powers and confer additional powers and functions on the Public Protector. This obviously means that since our Constitution is the supreme law‚ national legislation cannot have the effect of watering down or effectively nullifying the powers already conferred by the Constitution on the Public Protector. That national legislation is the Public Protector Act and would‚ like all other laws‚ be invalid if inconsistent with the Constitution. In any event section 182(1) alludes to national legislation that “regulates” the Public Protector’s three-dimensional powers.