Africa’s Ombudsman model

Kevin Mokento | Monday June 20, 2022 06:00

Projecting his customary charm, confidence and trademark nonchalance, the erudite president with a king-size ego has assiduously refused to entertain questions from the media about what happened on his farm.

On June 9, 2022, in what was seen by many sceptics as an instinctive survival move, Ramaphosa suspended the Public Protector, Busisiwe Mkhwebane, just four months short of completing her sixth year in office. According to South Africa’s constitution, public protectors’ tour of duty is capped at 7 years. Mkwhebane has hit back, accusing Ramaphosa of conflict of interest, and in essence, linking her suspension to the fact that she had initiated the process of investigating the president. Mkwhebane, who can best be described as anything other than emollient, is demanding reversal of her suspension and has intimated that this is as good as any time for the president to pay the piper. It is not hard to discern why Ramaphosa’s quotient of political goodwill would not allow him to settle for the disgrace of being a one-term president.

Prior to Mkwhebane’s suspension, while Ramaphosa was waiting for her to furnish him with “reasons why he should not suspend her,” not given to silently pressing their nose against the glass and watching helplessly as accountability is eroded, Julius Malema’s Economic Freedom Fighters were already crying foul and dismissing the president’s move as “premature” and “dictatorial.”

The Namibia EFF did not spare President Hage Geingob. They demanded that the Ombudsman, Basilius Dyakugha, should investigate him. Just a little over nine months into Dyakugha’s appointment, in what might well be his first test of mettle and independence, the Ombudsman refused to investigate the president, stating: “The complaints submitted...fall outside my mandate...unlawful conduct, money laundering, theft of money...it is, therefore, our considered view that such alleged acts by the president are tantamount to violations of the oath of his office...serious violation of the president’s oath of office is a matter that is entrusted to Parliament and not the ombudsman...I, therefore, decline to investigate the complaint submitted by the Namibia EFF.”

The import of this article is not to question the legality or otherwise of Ramaphosa’s decision or that of Namibia’s ombudsman, but to address the peculiarity of Africa’s model of the public protector’s office.

This is important considering that in some jurisdictions, as one Philippines’ senator said, the Ombudsman’s powers are “Plenary, infinite and wide-ranging.” Generally, it is accepted that for the office of the ombudsman to discharge its vigilance mandate effectively, it must be endowed with independence and should be unshackled from the influence and interference of the appointing entity. It must be determined to demand transparency from government organs, enthusiastically foster a governance framework that is accountable to the people and swiftly address allegations of corruption.

Whereas on paper, Ombudsman offices are bestowed with such power, can the people trust such offices to execute their role with impartiality? The cynic in me whispers: “Not always.” People across the world have decried the tendency of the ombudsmen to fall into the trap of selective justice, the inclination to decisively deal with indiscretions of people opposed to the ruling class, and the keenness to dismiss as trivial, reports of misconduct by the powers that be. We all appreciate how, even for the most upright and honourable of individuals, it would be difficult to grip with unquestionable tenacity, the sceptre of integrity, when called upon to bite the hand that feeds them.

Over two centuries ago, the concept of the ombudsman was instituted in Sweden, and this culminated in the appointment of the Ombudsman in 1809. Appointed by Parliament, a necessary precondition for building public confidence in this institution, the powers of the office of the Ombudsman are extensive and cover maladministration, unfairness and negligence of duty by public officers, members of the judiciary and the military. The uptake of this system of holding authority and officialdom to account was not readily embraced by the rest of the world though. The Nordic countries of Denmark and Norway only bought into this concept approximately a century and a half after Sweden. With legislature-appointed public protectors, in these countries, the institution is braced to effectively discharge its mandate without fear or favour.

Particularly interesting is the power of the Ombudsman over the judiciary. The office is normally triggered into action when sufficient evidence is availed confirming that judges violated their mandate. The regulatory framework is assessed every year and a report on areas of improvement is presented for the legislature’s consideration. Incidentally, the word Ombudsman originates from the Swedish gender-neutral term umbuds man, which translates into ‘representative.’ Perhaps, this speaks to the public advocacy or surveillance role of the Ombudsman.

What obtains in Africa? In many African countries, the Ombudsman is appointed by the head of state. At some point, Sudan was the only country in Africa where the Ombudsman was appointed by Parliament. In South Africa, much the same as in Namibia, the public protector is appointed by the president following recommendations received from the Judicial Service Commission. In theory, the ombudsman should not swear allegiance to the appointing entity, including the head of state. However, in practice, with the exception of a few assertive and intimidation-proof individuals like Mkwhebane’s predecessor, Thulisile Nomkhosi Madonsela, oftentimes, docile ombudsmen get cold feet, particularly when called upon to hold heads of state and their close allies accountable.

Ombudsmen are normally constrained from objectively addressing politically sensitive issues of graft and corruption. Why? For two reasons. One, they are somewhat hamstrung by their subservience to the appointing authority. In their lenses, the head of state evolves into a superhuman, way beyond the scrutiny of the constitution. Two, after carrying out investigations, their power is only limited to making recommendations for consideration by the head of state, who holds wide discretionary powers for implementing or ignoring such. In essence, ombudsmen in countries that fit this mould can only bark, but with their canines severely blunted, they are compromised from biting.

The same applies to Botswana. The law provides for the president to appoint the ombudsman in consultation with the leader of the opposition. Dorothy Mpabanga, Senior Lecturer at the University of Botswana’s Department of Political and Administrative Studies observed: “The Ombudsman may recommend remedial action but does not have the power to enforce compliance or take further action in cases of non-compliance. The office is also limited in relation to the type of matters it can investigate...the Act provides that the Ombudsman may not investigate matters related to security, the defence forces, police, corruption, crime, the appointment of public officers, private contractual and commercial dealings, and matters before courts.”

It is not surprising that in his first annual report, the late Lithebe Maine, the country’s first ombudsman, stated: “A key and central element to any ombudsman operation must be its independence from the government...In order to put this independence into correct perspective, the Ombudsman Act must be amended to make the institution a juristic person. It is important in my view that the independence of the office be clearly demonstrated in the statutory basis on which it is established.”

African countries appreciate that the popular will is to strengthen governance and hold offending officers to account. For now, the only issue is the degree to which governments are willing to desist from subjecting ombudsmen to instinctual intimidation, the disposition to refrain from trafficking falsehoods and the inclination to confer full autonomy and enforcement powers to these entities through a well-established non-negotiable legal framework.

Otherwise, even for countries in dire need of governance hygiene, these important public organs might forever remain vulnerable to the dark, ham-handed and manipulative machinations of those vested with power.