Ombudsman Act 2021 (N. 22 of 2021)

1. Short title and commencement

2. Interpretation

3. Application PART 11 - Continuation of Office of Ombudsma n and Appointment of Ombudsman - Continuation of office of Ombudsman R PN - Appointment of Ombudsman - Disqualification for appointment as Ombudsma n - Oath to be taken by Ombudsman - Tenure of office of Ombudsman . Vacation of office PART W1 - Functions and Powers of Ombudsman

10. Functions of Ombudsman

11. Discharge of functions of Ombudsman

12. Powers of Ombudsman PART IV - Complaint and Investigation

13. Manner of making complaint

14. Lodging of complaint

15. Complaint to be made by personal representa tive

16. Matters not to be investigated

17. Ombudsman to inform complainant of progress of matter

18. Conduct of investigation

19. Staff to perform their functions without undu e influence, etc.

20. Procedure in respect of investigation

21. Evidence

22. Proceedings after investigation PART V — Miscellaneous Provisions

23. Administrative expenses

24. Protection from liability A130

25. Confidentiality

26. Annual report and spe cial report

27. Offences

28. Regulations

29. Repeal of Cap. 02:12

30. Savings and transitional provisions SCHEDULE An Act to make provision for the continuation of the the Ombudsman, for the Office of powers and functions of the the investigation of admini Ombudsman, strative actions taken on Government, the protec behalf of tion and promotion of investigation of human rights human rights, the violations, and for matters inc thereto and connected therewith idental , Dare of assent: 08.11 20 21 Date of commencement: ON NOTICE ENACTED by the Parliamen t of Botswana. PARTI - Preliminary Short title and 1. This Act may be cited as commencement the Ombuds man Act, 2021, and shall - sme into operation on such date as the Minister published in the Gazette, app may, by Order Interpretation oint.

2. In this Act, unless the contex t otherwise requires — “Cabinet” means the Cabinet est ablished by section 44 (1) of the Constitution; “complainant” includes a per son who lodges a complaint behalf of another person; on “complaint” means a complaint made under Part IV of the Act; “department of Government” inc ludes — (a) all Ministries and entities of the central Government, whether they are located out side or within Botswana; (%) all para statals, statutory organisations, local authorities; and (c) any other entity which perfor ms a public function; “human right” means a fundament al right or freedom provided for in the Constitution; “Ombudsman” means the Omb udsman appointed in terms of section 5; “private entity” means a voluntary organisation non,-governmental organisation, political party, cha ritable institution, society, association, company, partnersh ip, club, trust or any other person or organisation which is not a public body; and “repealed Act” means the Omb udsman Act tepealed under section 29, Application 3. The provisions of this Act shall apply to a department Government and to a privat of e entity. A.131 FART II — Continuation of Office of Ombudsman and Appointment of Ombudsman

4. (1) The office of the Ombudsman as established in the repealed Continuation Act shall continue to exist as if established unde r this Act. of office of (2) The office of the Ombudsman shall consi Ombudsman st of the Ombudsman, such Deputy Ombudsmen and other staff of the office as may be appointed. (3) The office of the Ombudsman shall be a public office and accordingly, the provisions of the Public Servi ce Act shall apply with Cap. 26:01 the necessary modifications to the office and the officers thereof.

5. (1) The Ombudsman and the Deputy Ombudsman shall be Appointment appointed by the President, after consultati of Ombudsman on with the Leader of the Opposition in the National Assembly and the Speaker of the National Assembly. (2) A person shall not be qualified to be appo inted Ombudsman or Deputy Ombudsman unless he or she is quali fied to be appointed to the office of a Judge of the High Court. (3) Where the Ombudsman or a Deputy Ombu dsman dies, resigns, ceases to hold office, is removed from offic e or is unable to perform the functions of his or her office, the President shall , after consultation with the Leader of the Opposition in the National Asse mbly and the Speaker of the National Assembly, appoint a person to act as the Ombudsman or a Deputy Ombudsman until the appointm ent of a substantive Ombu dsman or a Deputy Ombudsman. (4) The Ombudsman appointed in terms of this section shall be the accounting officer.

6. Aperson shall not be qualified to be appointe d as an Ombudsman Disqualification or a Deputy Ombudsman if he or she is a — for appointment (@) holder of an office in a political party; a5 Ombudsman (b) candidate for election as a member of the National Assembly: (c) member of the National Assembly; (d) member of any local authority; (e) member of Ntlo ya Dikgosi; or (/) holder of any other public office.

7. An Ombudsman, a Deputy Ombudsman or an officer of the office Oath o be taken of the Ombudsman shall not enter upon the dutie by Ombudsman s of his or her office unless he or she has taken and subscribed to such oath or affirmation in the form set out in the Schedule — (a) inthe case of the Ombudsman and a Deputy Ombu dsman, before the President; and (b) in the case of any other officer, before the Ombudsman,

8. A person holding the office of Ombudsman shall vacate that office Tenure of at the expiration of five years from the date of office of his or her appointment, and shall be eligible for re-appointment for only Ombudsman one further term of five years. Ad32 Vacation of office 9. The Pprovisions of sec tion 97 (2) to (5) of the Constitut with necessary modification ion shall, s, apply to the removal Ombudsman and Deputy Om fro m off ice of the budsman, PART 11l - Functions and Powers of Ombudsman Functions

10. (1) Subject to the pro of Ombudsman visions of this section, the may investigate any action Ombudsman taken by or on behalf ofa (a) department — of Govemment, in the exercise of administrati functions of that departmen ve t— (i) inanycase wherea compla int is made to the Ombudsma by a person who claims to, n or (if) on his or her own mot ion where he or she consid necessary to invest ers it igate the action on the gro person has or may, und that a have sustained injustice or unf air treatment in consequence maladministration in connectio of (b) department of Governmen n with the action so taken; or t or private entity — (1) inany case where a com pla int is made to the Ombudsma by a person who claims to, or n (i) on his or her own mot ion where he or she considers it necessary to investigate the action on the ground that a person has or may, have sustained violation of his or her human rights in conseq of the action so taken. uence (2) The Ombudsman may tak e appropriate action to call for the remedying, correction and reversal of instances specifie subsection (1) through fair , pro d in per and effective means, (a) mediation, arbitration, including — negotiation, conciliation and between the parties concerned compromise ; and causing the complaint and a fin ding on it, to be reported to the principal officer of any depart ment of Government or a privat entity and to a person who is est e ablished to have taken or author the action in question. ised 3) The Ombudsman shall — (a ) educate the public on mal administration and human Tights by such means as the Ombudsman may determine, including publicati lectures, workshops and sympos on, ia; (b, implement a continuing pro gramme of research, education information to enhance respect and for human rights and to increa awareness and promote a human se rights culture; ) (c advise Government on the ratificat ion and implementation of human rights treaties and conven tions; (d promote compliance with nat ional laws that protect and pro the enjoyment of human rights; mote (e, assist Government to mon itor, address and eport on hum concerns at national and internati an rights onal level; () collaborate with civil society organisations, non-governmental organisations, regional and international organisations in promoting human rights; and (g) make recommendations and proposals to competen t authorities, forthe amendment and reform of laws, policies and admin istrative practices to bring them into conformity with Botswana’sinter national human rights obligations.

11. In the discharge of his or her functions under Discharge of this Act, the Ombudsman shall not be subject to the direction or functions of control of any other person or authority and the proceedings of the Ombudsma Ombudsman n shall not be called into question in any court of law.

12. (1) For purposes of performing his or her funct ions under this Powers of Act, the Ombudsman shall have the power — Ombudsman (a) to, in his or her discretion, determine the natur e and extent of an investigation; (b) subject to the provisions of any law regulating the privileges or immunities of any person or institution provided for in any law — (i) to enter into and inspect any building or premises or any paut thereof, and to make such enquiries therein or thereon, and put such questions to any person employed there on or who finds himself or herself in or on that building or premises in connection with the matter in question, as the Ombudsman may deem necessary in connection with that investigation, (ii) to access all books, vouchers, other documents, money, stamps, securities, forms having a face or potential value, equipment, stores and other movable good s in the possession or under the control of any such person, and which the Ombudsman deems necessary to inquire into or to investigate in connection with such investigation, and (iii) to request particulars and information from any person which the Ombudsman may deem necessary in connection with that inquiry or investigation; (c) toissue subpoenas requiring attendance of any perso n befor e the Ombudsman and the production of any document or recor d relevant to any investigation by the Ombudsman; (d) to question any person in respect of any subject matte r under investigation before the Ombudsman; and (e) torequire any person to disclose truthfully, any information withi n his or her knowledge that is relevant to any investigation by the Ombudsman. (2) If any person subpoenaed as a witness under subse ction (1) (¢c) fails to attend or to produce any document or any other thing pursu ant to the subpoena and he or she is unable to give a reasonable excuse for the default, he or she shall be guilty of an offence. Al34 PART IV - Complaint an d In vestigation Manner of making 13. () A complaint ma de under this Act may individual or a body of per be made by any complaint sons, whether corporate (2) Acomplaint to the Ombu or unincorporated. dsman shall be made in wri (3) Where a complaint ting or orally. is made in writing, it sha complainant or his or her ll be signed by the Tepresentative. (4) Where a complaint is made orally, the per complaint is made shaj] son to whom the reduce the complaint int o writing and the made under this section shall be read over, interp to the complainant, by reted and explained the person to whom the complaint is made, in Lodging of comphaint 14. (1) Subject to the pro visions of this section, a considered lodged in any cas complaint is e where — (a) the complaint is ma de to the Ombu dsman by a member of public — the () who claims to have sus tained injustice in conseq of maladministrati uence on, or (ii) who claims to hav e sustained a violation her human rights and fre of his or edoms, in consequence of any action taken by or on behalf of a department of Government or a private entity, being action taken the exercise of functions of in that department or private entity; or (b) the complaint is referr ed to the Ombudsman, wit the person who made it, h the consent of by — (1) a member of the Nation al Assembly, (ii) a member of any loc al authority, (iii) a Kgosi, or (iv) any organisation on beh alf of a complainant, with a request to conduct an inv (2) Tn determining whethe est iga tion thereon. r to initiate, continue or dis nvestigation under this continue an Act, the Ombudsman sha section, act at his or her ll, subject to this own discretion, and any a complaint is duly made que stion on whether under this Act shall be determine Ombudsman. d by the A135 (3) Without Prejudic e to the Provisions of may refuse to initia Subsection (2), the Om te or inay discontinu budsman {0 him or her that th e, any investigation if it appears e— (@) complaint is fr ivolous or vexatiou () person aggrieve s or is not made in go d has no sufficient in od faith; the complaint; or terest in the subject matter of (¢) making of the co mplaint has, for more than 36 months withoug Teasonable cause, been de] ayed

15. Where any pers . on by whom a comp under this Act has di laint might have be ed or is for any reas en made Complaint to herself, the complain on unable to act for hims t may be made by hi elf or be made by or by a member of s or her personal repr personal his or her family or esentative rep of persons, whethe any other individual resentative r corporate or inco or body Tepresent him or her rporate, with the au . thority to

16. (1) The Ombu dsma n shall not invest Tespect to any of th igate any action ta e following — ken in Matters not to (a) matters that affe ct external relation be investigated Govemment of Bots s or dealings betwee wana and an internat n the government of an ional organisation or other State; the (b) the conduct of civ il or criminal procee tribunal or quasi-ju dings in any court, ju dicial body; dicial (c) the grant of honours, aw ards or privileges of the President; or within the Ppreroga tive (d) a matter relating to the exercise of the the President in acco prerogative of merc rdance with section 53 y by (2) Except as Provid of the Constitution. ed in this Act, the Ombu an investigation into an dsman shall not cond y action in respect of wh uct has or had — ich the person aggrie ved (a) arightof appeal, ref erence, or review toorbe by or under any la forea tribunal constigy, w in force in Bots ted wana: or

17. (1) Where a comp laint or request for inv in accordance with the estigation is duly made Ombudsman to provisions of this Act inform the complainan , the Ombudsman sha inform t of the Progress or co ll (2) Where the Ombu nclusion of the maiter complainant dsman makes a det . of progress precluded by section ermination that he 16 from investigating or she is of matter within 14 days of maki any matter, he or she ng such a determinatio shall, in writing, stating the n, inform the compla reasons for such determ inant ination, A.136 Conduct of

18. (1) Inconducting an investig investization ation under this Act the Ombuds shall observe the rules of natu man ral justice but shall not be bou legal or technical rules of eviden nd by any ce applicable to proceedings before courts. the (2) The proceedings under subsection (1) shall be con informally and expeditiously. ducted (3) The Ombudsman shall, after consid ering the nature of the investigation, determine whethe r to conduct proceedings in camera in public. or Staff 10 perform 19. An officer of the office of their functions the Ombudsman shall perform his without undue or her functions without fear, favour or prejudice, influence, ete. authority shall not interfere wit and a person or h or exert undue influence on officer in the exercise of his or her such powers or in the performance of his or her functions. Procedure in 20. (1) Where the Ombudsman Pro tespect of poses to conduct an investigation investigation under this Act, he or she shal l afford to the principal offi department of Government or to the cer of a private entity who is alle; ged to hav taken or authorised the action in ques e tion, an opportunity to comment on any allegations made to the Ombuds man in respect thereof. (2) Inconductingan investigation und er this section ,the Ombudsman may obtain information from suc h persons and in such manner, and make such enquiries, as he or she thinks fit, and may determine whe any person may be represented by a ther legal practitioner. (3) Where the Ombudsman has rea sonable grounds to suspect that the information obtained under sub section (2) would be relevant to — (@) the functions of any investig atory authority; or (b) any investigation being conduc ted by any investigatory authority, the Ombudsman shall disclose the information to that authority. investigatory (4) For purposes of this section, “in vestigatory authority” means an authority empowered by an Act of Parliament to investi gate or prosec unlawful activiti ute es. Evidence 21. (1) For purposes of an inve stigation under this Act, the Ombuds man may require any Minister or officer of any department of Government or any other person who in the Ombudsman’s opinion, is able to furnish information or pro duce documents relevant to the investigation to furnish any such inf ormation or produce any such document. (2) For the purposes of any such investig ation — (a) the Ombudsman shall have the same powers as the High Court in respect of the attendance and exa mination of witnesses, including the administration of oaths and the examination of witnesses abroad, and in respect of the pro duction of documents; (b) noobligation to maintain secrec y or other restriction on the disclosure of information obtained by or furnished to persons in the public service imposed by any law in force in Botswana shall apply to the disclosure of informati on for the purposes of any investigation under this Act; and Aa37 (5) The Attorney General may give respect to any do nofice (o the Ombu cument or inform dsman, with in his or her opin ation specified in ion the disclosure the notice, that would be contrary of that document to the public inte o information relations or intern rest in relation to al security, defence, externa| (6) Where 2 noti ce is given unde section shall be co r subsection (5), nstrued as author nothing in this Or any member of ising or Tequirin his o her staff to g th e Ombudsman purpose, any docu communicate to ment or informat any person for an ion specified in th y e notice. or produce in Proc eedings before th

22. (1) After co e High Court. nducting an inve Ombudsman shay stigation under ) send a report of this Act, the Proceedings officer of the de the investigation partment of Gove to (he principal after concerned. rnment or to th investigation e private entity (2) Where the Om budsman is of th treatment has be e opinion that inju ep caused to th stice or unfair of maladministrat e person aggrie ion ve d in conseq Ombudsman shay ma or violation of his or her human ri uence ke such recommenda ght, the to remedy the inju tions as he or she th stice or unfair {rea tment caused, and inks fi¢ time within Which may specify the the injustice or unfa (3) If there js fa ir treatment sha]) ilure or refusal be remedied. ofthe Ombudsman to implement the recommen within the specif dations (a) maladministr ied time the Ombu ation Proceedings, dsman may for — Assembly a Teport Prepare and subm in accordance with it to the National failure or refusal section 26, detailin to implement its rccommendation g the (b) human rights s; or Proceedings, bring an action be seek such remedy fore a court and as may be appropri recommendations. ate for enforcemen t of itg PARTV - Miscella neoys Provisions

23. (1) The admini stra ti ve €xpenses of th including such ex e office of the Om penses and allowa budsman, Administrative provisions of this Ac nces as are author t, shall, to such am ised by the expenses Nationa] Assembly ount as may be sa , be paid out of th nctioned by e Consolidated Funq , A138 incurred or by way of all owance or compensation accordance with such sca for loss of time, in les and subject to such con prescribed. ditions as may be (3) The provisions of subsectio n (2) shall not apply to departments and private ent Government Protection from ities complained against. lability 24. No action shall be brought against the Ombu Ombudsman or any memb dsman, Deputy er of staff of the office of the Ombudsman in the exercise of his or her dut Confidentiatity ies under this Act.

25. (1) Subject to the provisions of section any officer of the Ombuds 26, the Ombudsman or man’s office shall observ confidentiality of all matter e and preserve the s coming before the Ombu confidentiality shall sub dsman, and such sist even after the termin office or their mandates. ation of their terms of (2) A person to whom con fidential information is rev ealed through law or for purposes of any jud icial proceedings, (3) Any member or any oth er person who contravenes of this section commits an the provisions offence and is liable to a fin P2.000, or to imprisonment e not exceeding for a term not exceeding six both. months, or to Annual report 26. (1) The Ombudsman and speciat shall lay before the National repart annual report concerning the Assembly, an discharge of his or her functi (2) Notwiths[andmg the pro ons. visions of subsection (1),the may at any time make a spe Ombudsman cial report to the National Ass findings of any particular inv embly on the estigation if — (@)he or she deems it necess ary, or (b) he or she deems it to be in the public interest. (3) The report referred to jn subsection (2)shall include — (a) the nature and extent of the inquiry and the invesu (b) the defects and defici gation; encies, if any, which in his exist in the administration of or her opinion the concerned matter; and (c) the action or steps tak en to remedy, rectify, correc injustice suffered. t or reverse the (4) The report referred to in subsection (2) shall be National Assembly. laid before the (5) Any report made by the Ombudsman shall be open to unless the Ombudsman is of the public, the opinion that exceptional tequire that the report be kep cir cum stances t confidential. (6) Ifthe Ombudsmanis ofthe opinion that cxceptional circum require that a report be kept con stances fidential, the Ombudsman sha reasons therefore in the report ll state the , and the report shall be dea confidential rep ort in the National Assemb lt with as a ly. A139 (7) For Purpos es of this sectio the publication n, “exceptionzfl of the report is circums[ances” (a) to endanger likely — exist if nationg] security or Prejudice nati ona] interest; OI to any member of the National As Or matter shall, sembly regardin jf made in acco g such complaint be absolutely priv rdance with th e Provisions of ileged. thig Act,

27. Any person Who — Offences Regulations of this Act.

29. The Ombudsma n Ac t g hereby repeal ed.

30. ( Repeal of Cap.02:12 € Savings and transitional provisions A.140 (3) Any investigations com menced under the repealed continue as if made under this Act Act shall . (4) Any decisions made under the repealed Act shall be bindin they were made under this Act. g as if (5) Any disciplinary proceedin gs which, prior to the coming operation of this Act, were pen into ding shall be continued as if have been continued before the the y wou ld coming into operation of this Act. (6) The administrative structure , s of the office of the Ombudsman existence under the repeal in ed Act immediate] y before the of this Act shall, to the extent that commencement their continued existence is not inappropriate or inconsistent wit h this Act, continue in existence (7) Any person who is an offi , cer or employee of the office Ombudsman immediately before of the the coming into operation of this shall continue in office for the Act / period for which, and be subjec conditions under which, he or she t to the was appointed. A141 SCHEDULE OATH/AFFIRMATION (section 7) Ombudsman and Deputy Ombudsman ,do swear /solemnly, sincerely and truly declare and affirm that I will faithfully and diligently discharge my duties and perform my functions, and will well and truly serve the Republic of Botswana in the office Of ....oo....o..... . that I will do justice in accordance with the Constitution of Botswana as by law estab lished and in accordance with the laws and usage of Botswana without fear or favou r, affection or ill-will and that T will preserve and observe confidentiality in all matte rs coming to my knowledge through working in the office of the Ombudsman, unless I am required to do so in terms of any written law, or for purposes of any judicial proce edings. So Help Me God Officers employed in the Office of the Ombudsma n .., do swear/solemnly, sincerely and truly declare and affirm that T will faithful y and diligently disch arge my duties and perform my functions, and well and truly serve the Republic of Botswana in the office of ............................ and that I will preserve and observe confidentiality in all matters coming to my knowledge through working in the office of the Ombudsman, unless I am required to do so in terms of any writte n law, or for purposes of any judicial proceedings. So Help Me God PASSED by the National Assembly this 16th day of August, 2021. BARBARA N. DITHAPO, Clerk of the National Assembly.