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The Ombudsman Arrives in Botswana: A Note on the Ombudsman Act, 1995

Published online by Cambridge University Press:  28 July 2009

E. K. Quansah
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Extract

The enactment of the Ombudsman Act, 1995, marks Botswana's belated, albeit welcome, membership of the world-wide movement to enhance governmental administration. 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 conference by the then Minister for Presidential Affairs and Public Administration who was quoted as saying:

‘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.’

Type
Statute Notes
Information
Journal of African Law , Volume 39 , Issue 2 , Autumn 1995 , pp. 220 - 225
Copyright
Copyright © School of Oriental and African Studies 1995

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References

1 Act No. 5 of 1995. Date of commencement to be made by notice in the Government Gazette.

2 See Bishai, M. F., ‘Enhancing accountability—a comparative analysis of the Ombudsman institution’, Public Sector Management and Private Sector Development Division, The World Bank, 1992.Google Scholar

3 Organized by the Department of Political and Administrative Studies, University of Botswana in November 1993.

4 See the Daily News, 5 November, 1993, No. 209 at 1.

5 S. 1(3).

6 See Ayeni, V., ‘An Ombudsman for Botswana?’ paper presented at the international conference on the feasibility of the Ombudsman institution in Botswana in Gaborone, 11 1993 at 24.Google Scholar

7 In the 1994 general elections, the opposition party won 13 of die 40 elected seats, an increase of ten seats from the previous Parliament.

8 See Hatchard, J., ‘The institution of the Ombudsman in Africa with special reference to Zimbabwe’, 35 I.C.L.Q. 255 at 258.CrossRefGoogle Scholar

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.

11 See Quansah, E. K., ‘Botswana's Corruption and Economic Crime Act 1994—some comments’, (1994) 38 J.A.L. 191.CrossRefGoogle Scholar

12 See the address of SirCompton, Edmund, the first Parliamentary Commissioner for Administration in England to the Society of Public Teachers of Law, (1968) X JSPIZ (NS) 101 at 103.Google Scholar 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 Caiden, G. E., ‘What really is public maladministration?’ (1991) 51 Public Administration Review at 6 where some 180 possible factors that may amount to maladministration are listed.CrossRefGoogle Scholar

14 See for example, Yardley, D. C. M., Principles 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.Google Scholar

15 The said section deals with redress for contraventions of the fundamental human rights and freedoms provisions.

16 , Hatchard, op. cit., 262.Google Scholar

17 See The Midweek Sun, 22 February, 1995, at 1.

18 S. 3(8).

19 S. 3(4).

20 S. 3(5).

21 See s.43(l) 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).

23 This was said to be the reason behind a similar provision in the English Parliamentary Commissioner Act 1967. See Williams, D., ‘Parliamentary Commissioner Act 1967’ (1967) 30 M.L.R. 547 at 551.CrossRefGoogle Scholar

24 For example, Permanent Commission of Enquiry, 1966 (Tanzania), Commission for Investigation Act, 19674 (Zambia) and Ombudsman Act, 1982 (Zimbabwe).

25 See for example, Raphael, N., et al. , ‘Public sector management in Botswana—lessons in pragmatism’, Staff Working Paper 709, The World Bank, Washington, D.C. 1984.Google Scholar

26 See Quansah, op. cit.