Many Zimbabweans have great admiration for Thuli Madonsela, who recently completed her seven-year term of office as the Public Protector in South Africa. They are awed by the courage and determination she has shown in pursuing the anti-corruption drive across the Limpopo, taking on the might of the executive arm of the state. But the admiration owes more to the fact that Zimbabweans really yearn for their own version of Thuli Madonsela. In a country that is plagued by widespread corruption, abuse of public office and public funds, and everything is tightly controlled by a cabal based on patronage, Zimbabweans wish they had a courageous gatekeeper to represent and protect their interests.
I have lost count of the number of times Zimbabweans have asked whether the country has a Public Protector. My answer has been standard: given the nature of the system that operates in Zimbabwe, it would not make a difference even if we had the office of the Public Protector and it is highly improbable that the current system would ever produce a Thuli Madonsela. I decided to write this article in order to explain the law and politics of the public protector role, placing it within the historical context. I also explain that while Zimbabwe does not have a direct equivalent of the Public Protector, the new Constitution sets out critical institutions, whose functions approximate to the role of the Public Protector. Used well, they could do an equally good job, but there are serious impediments that stand in their way.
The Office of the Ombudsman
The younger generation of Zimbabweans do not know that until 2013, the country had an Ombudsman, the equivalent of the Public Protector. This office was one of the casualties of the unfortunate constitutional reform process. Later, I will explain the rationale behind its demise. At this point, it is important to give an historical background of the office.
The Office of the Ombudsman was first established under the Lancaster House Constitution which was adopted at independence in 1980. In fact, the first provision for the Office of the Ombudsman was originally in the Constitution of Zimbabwe-Rhodesia in 1979, the short-lived constitutional dispensation negotiated between the Smith regime and the likes of Bishop Abel Muzorewa and Chief Chirau. It was not implemented. However, as it turned out, it would have been a stronger office than the version that was introduced in 1982 under the Ombudsman Act, courtesy of the Lancaster House Constitution. Whereas the Zimbabwe-Rhodesia Ombudsman had wider jurisdiction and could initiate investigations, the Zimbabwe version under the Lancaster House Constitution could only act on the basis of complaints and had no powers to initiate its own investigations.
The first Ombudsman of Zimbabwe was a Mr Justice Moodley, a judge from Zambia, who took office on 1 September 1982. Importing a foreigner to take up the role was partly a reflection of the paucity of legal skills within the newly independent country and also the desire to create a perception of an independent and impartial office. When the Minister of Justice, Legal and Parliamentary Affairs presented the Bill, he explained that “… [Zimbabwe] has never had an ombudsman before, as in the colonial days people had to “suffer in silence” when aggrieved by the often heavy handed actions of government officials. It is the present government’s policy that the Public Service should be the servant and not the master of the people, and it is in accordance with this policy that I am pleased to present this Bill to Parliament” (Parliamentary Debates, 17 June 1982). These were high-sounding words, suggesting a government that was committed to openness and transparency.
However, the idea of the ombudsman had long been mooted as far back as the 1960s. In 1967, P.B. Harris, a Professor of Political Science at the University College of Rhodesia wrote an article entitled “The path to the Rhodesian Ombudsman” in the Rhodesia Law Journal. He reported that the Constitutional Council of Rhodesia had recommended that the country adopt the office of the Ombudsman which would provide protection against discriminatory legislation and executive action. Harris argued that the idea of an ombudsman provided flexibility and was worth pursuing. Britain, the colonial power, had adopted the idea in 1966 and New Zealand was the first Commonwealth country to adopt the idea in 1962. The origins of the office of the Ombudsman lie in Scandinavia, with the first Ombudsman having been appointed in Sweden in 1713. Both Norway and Denmark had developed their own versions of the office. There, the Ombudsman was a creature of Parliament and it reported to Parliament rather than to the executive. After all, its role was to act as a check on the executive.
In Africa, Tanzania was the first country to establish the office, albeit under the title of the Permanent Commission of Enquiry (PCE). It was established upon the recommendation of the Presidential Commission on the Establishment of a One Party State in 1965 which argued that the office would be a useful safeguard against abuse of power by the executive. Nevertheless, there was a caveat, that it would curb abuse of power, without hindering national development. Other countries soon took the same path. They were Ghana, Mauritius, Zambia, Sudan, Nigeria, Zimbabwe and Swaziland. So Zimbabwe was in fact among the first group of countries to establish the office of the ombudsman, long before South Africa’s Public Protector was established. The growing profile of South Africa’s Public Protector is a testament to the office’s hard work, effectiveness and impact compared to its older counterparts around the continent. The one distinction between the African versions of the Ombudsman and the original Scandinavian version was that the African Ombudsmen were generally appointed by the Executive whereas the latter were creatures of Parliament.
A compromised office
Although with a longer history, the Zimbabwean version of the Public Protector never rose to the dizzy heights of its South African counterpart. It was so weak and ineffective that a lot of older Zimbabweans had no idea it existed. It was also plagued by incompetence. One Ombudsman had the awkward distinction of having plagiarised the report of a foreign Ombudsman but even then the copy and paste job was so poor that he forgot to change the names in the report. All in all the Ombudsman had such an unremarkable career that its demise went unnoticed and few mourned it in 2013. Its failures were largely because it lacked independence, had limited power, did not have enforcement powers and appointments were based on patronage. It did not have the clout and courage to challenge and scrutinise the executive, which made it ineffective.
Lack of independence
First, the ombudsman was appointed by the President, acting on the advice, of the Prime Minister. Under the Lancaster House Constitution, the President was ceremonial and executive power was vested in the Prime Minister. The Prime Minister made his recommendation after consultation with the Judicial Service Commission, which consisted of persons who were effectively his appointees. Unlike the original Ombudsman in the Scandinavian countries, Parliament had no role in the appointment of the Ombudsman. This executive control in the appointment process was due to the obsessive control on state institutions in a young, independent state where the nationalists were paranoid about creating new centres of authority. An office that investigated the operations of government would have been seen as a potential challenge to the authority of the executive. It could also have been seen as undermining the position of the head of government. The Office of the Ombudsman could therefore not be given a free reign. Its powers had to be controlled.
Although the appointment procedure gave too much power to the Executive, in the early years there was at least some effort to create a veneer of independence, hence the appointment of Mr Justice Moodley, a judge from another jurisdiction. Nevertheless, these pretences were later discarded, with appointments reflecting political partisanship. One ombudsman was a Bridget Chanetsa, who was the wife of Peter Chanetsa, a former Provincial Governor and staunch ZANU PF member and Mugabe loyalist. Her tenure was largely unremarkable, even though she was the Ombudsman during a time of gross human rights violations. Her conduct was criticised by the African Commission on Human and People’s Rights Fact-Finding Mission in 2002. It wrote, “It was evident to the mission that the office was inadequately provided for such a task and that the prevailing mindset, especially of the Ombudsman herself, was not one which engendered the confidence of the public,”Furthermore, the Ombudsman Act was administered by the Minister of Justice, Legal and Parliamentary Affairs. This meant the ombudsman’s budget was also administered via the Ministry. The Ombudsman did not have control over its own budget. Considering that complaints handled by the Ombudsman would also affect the Ministry and government, this intimate relationship was unhealthy and compromised its independence. The result was that the Office of the Ombudsman was severely underfunded, suffered from staff and resource shortages, which undermined its operations. Its coverage was therefore limited to the metropolitan areas resulting in the exclusion of rural areas where the majority of the population was based. The paucity of resources was reflected in a report by The Zimbabwean newspaper which wrote in 2011, “The Ombudsman’s Office has struggled to discharge its mandate amid critical staffing levels amid reports it is operating with only two law officers instead of the desired 10, a situation that has led to a huge backlog of cases at a time when human rights abuses are increasing.”
Jurisdictional limitations
According to section 108 of the Lancaster House Constitution, the function of the Ombudsman was to investigate the conduct of certain specified government bodies where it is alleged that a person has suffered injustice in consequence of that action and there is no other remedy reasonably available by way of proceedings in a court or appeal from a court. The role was essentially to provide administrative justice in a confidential and flexible manner. Any person who claimed to have suffered injustice at the hands of a government official could complain to the Ombudsman for redress. Investigations could be undertaken without charge and in private.
However, the weakness of the early years of the Ombudsman’s office was that it had very strict limitations on jurisdiction. The Ombudsman could investigate conduct of most Ministries as well as local authorities, hospitals, schools and statutory bodies but it was excluded from investigating the defence forces, the police and prison service. It was also prohibited from investigating the President and his personal staff. Other offices that were exempt from investigations were the Cabinet Office, judicial officers, the Attorney General and law officers in respect of legal advice rendered to the State or legal proceedings, including prosecutions conducted on behalf of the State. The prohibition to investigate security services and their members was the most drastic exclusion which undermined the Ombudsman’s office. Complaints would have been directed against them, but the Ombudsman had not power to investigate.
The government reasoned that the exclusion was necessary to protect the state as according to the Justice Minister, investigations would have “inhibited the activities of [the security forces] much to the detriment of the State”. It was also argued that the ombudsman would be inundated with complaints from prisoners or arrested persons. It is more likely that the government knew the security services were involved in unlawful activities which the government preferred to keep away from scrutiny. The government was aware that there were many violations taking place and there would indeed be a lot of complaints against the security services. This is plausible given that the period between 1983 and 1987 was the darkest in post-independent Zimbabwe’s history when Operation Gukurahundi was unleashed in Matabeleland and the Midlands and the Fifth Brigade and state security agents wreaked havoc in those regions.
The ombudsman was also excluded from investigating the activities of political parties, yet ZANU PF was the subject of many complaints, due to its repressive activities against opponents during the 1980s. This limitation severely hampered the Ombudsman’s work.
These jurisdictional limitations led to rejection of many complaints. As law academic John Hatchard explained in a commentary at the time, “The large number of complaints rejected for lack of jurisdiction is a cause for concern. Some of them undoubtedly resulted from public uncertainty about the role of the office, but it is clear that many were the result of the jurisdictional limitations of the ombudsman. This underlines the need for expansion of the ombudsman’s jurisdiction without delay.” (The Constitution of Zimbabwe: A Model for Africa? [1991] J.A.L)
Some of these weaknesses were later corrected through amendments to the Ombudsman Act in 1997. The Ombudsman Amendment Act 1997, conferred new powers to the Office of the Ombudsman to investigate alleged violations of the Declaration of Rights in the Constitution by members of the Defence Forces, Police Force or the Prison Service. However, members of the Central Intelligence Organization were still excluded and therefore protected from the jurisdiction of the Ombudsman. There was an attempt to introduce an amendment to the Bill in order to include them, but it failed. Given that Parliament was controlled by ZANU PF, this was an audacious effort. The Ombudsman also got power to examine legislation in order to give an opinion on compliance with the Declaration of Rights. The Ombudsman also got the role of promoting human rights and public awareness. The 1997 amendments effectively re-shaped the Office of the Ombudsman into a Human Rights Commission. The Ombudsman can therefore be seen as the precursor to the current Human Rights Commission, a point that is relevant in our assessment of whether or not Zimbabwe has a Public Protector.
Power to initiate investigations
One of the early weaknesses of the Ombudsman was that the office did not have the right to initiate investigations. The power to initiate investigations is particularly important where citizens are not aware of their rights. They might suffer in silence. Bodies that protect rights ought to have the power to initiate investigations where they suspect violations. If they are to wait for complaints, they may never come, either because people do not know their rights or they are subjected to fear and intimidation which prevents them from lodging complaints. When the first Ombudsman issued his annual report in 1983, he called for this power. The same call was made by the Public Service Commission in its 1989 Report. These recommendations were not taken up by government. The irony, as already pointed out, was that the short-lived Zimbabwe-Rhodesia Constitution had made provisions for a more powerful Office of the Ombudsman than was established at independence.
Lack of enforcement powers
Another problem was lack of enforcement powers, which was a common trend among Ombudsmen in African countries. The Office of the Ombudsman could only carry out investigations and where a complaint was upheld, it reported the fact to the guilty institution, with recommendations on action to be taken. If the institution failed to act, the Ombudsman could report the matter to the President or Parliament. Beyond this, the Ombudsman did not have any further power. It would have helped if the Ombudsman had the power to issue orders just like a High Court judge, compelling parties to comply. There was not much recourse, other than appealing to the President for assistance to force stubborn bodies or public officers to cooperate with investigations. Like other Ombudsmen in African countries, they depended on the personal authority of the President, but that also meant he could ignore the recommendations if he did not like them. This was the era of Big Man politics where all-powerful authoritarian figures ruled. This reduced the effectiveness of the Ombudsman as it was overly dependent on the executive.In South Africa, the Public Protector role received a big boost this year when the Constitutional Court ruled that President Zuma was in breach of the law when he failed to comply with the recommendations of the Public Protector in the Nkandhla scandal. The Public Protector had found that public funds had been misused in the development of the President’s rural residence and he was ordered to pay back the money. It’s a good example of how the other parts of the state system can assist the Public Protector to ensure that its recommendations are obeyed and complied with.
Limited geographical reach
The Ombudsman’s work was limited in its geographical reach. It was an urban institution, situated in the capital and did not venture much outside that limited territory. As a result, there was a clear rural-urban divide in the use of the Ombudsman, with all complaints coming from people based in urban areas. Most of the complainants also came from the Harare and Mashonaland, even though a great number of violations were taking place in the Matabeleland and Midlands regions during Gukurahundi. Two commissions of enquiry were set up by government to investigate what was taking place in the regions but the findings have never been made public. An Ombudsman would have been an appropriate office to handle such investigations.
The poor geographical reach was not the fault of the Ombudsman. The office lacked resources and staff to carry out its mandate. It could not establish provincial offices simply because there were no resources and the government was not interested in strengthening the office. In the 1980s there were only 2 investigators working for the Ombudsman, to cover the entire country. Unsurprisingly, it was largely ineffective as it did not reach the majority of the people. Despite these limitations, during the early years, the Ombudsman carried out extensive publicity campaigns and more Zimbabweans in the 1980s would have known about the work of the Ombudsman than their counterparts did in later years, when the Office became more politically compromised, weaker and largely irrelevant.
After assessing the law and practice of the Ombudsman in Zimbabwe, John Hatchard concluded, “In Zimbabwe, in view of the weakening of other constitutional safeguards, the importance of the office of the Ombudsman has increased but current limitations on its operations have significantly limited its effectiveness. Thus it is asserted that the office must be re-established in the Constitution as an autonomous, viable and visibly independent body with an adequate jurisdiction.”
Overall, there were a number of impediments to the successful execution of the Ombudsman’s mandate. There were jurisdictional limitations which narrowed its remit. There was excessive government influence which compromised its independence. There were severe resource and staff shortages. The term of office which used to be 3 years was later extended to 5 which was useful to promote the office’s independence. However, a government which was moving towards centralisation of power in the executive was always sceptical about creating a powerful and probably popular Ombudsman. By virtue of the work of the Ombudsman, representing ordinary people’s interests against government, the office was seen as a counter-point to the centre of power in government. Therefore, while in practice the 1997 amendments theoretically expanded the jurisdiction of the Office, in practice, the government worked to emasculate it. The establishment of the Ombudsman in 1982 gave promise of a government that was willing to implement open government, but the actual practice demonstrated that this interest was illusory.
The overall assessment is that the Office of the Ombudsman was a failure.
Current situation
The Office of the Ombudsman was abolished in 2013, when the new Constitution was adopted. The abolishment was a highly contentious decision taken during the constitution-making process. In fact, early drafts of the Constitution had established the office of the Public Protector, using the same nomenclature and principles from the South African Constitution. However, there was a view that the duties of the Public Protector had already been parcelled out to different institutions established under the Constitution and that the office of the Public Protector would merely be a layer that would duplicate similar duties and lead to overlaps. These institutions are the Zimbabwe Human Rights Commission, the Zimbabwe Anti-Corruption Commission, the Auditor General and the Independent Complaints Mechanism. The right to fair administrative justice was also specifically included in the Declaration of Rights, requiring the establishment of institutions of administrative justice.
Human rights Commission
As already pointed out, the 1997 amendments to the Ombudsman Act effectively transformed the Office of the Ombudsman into a Human Rights Commission. Its expanded powers enabled it to deal more extensively with violations of human rights. When the Human Rights Commission was established a decade later, its functions overlapped with those of the Ombudsman as far as the human rights mandate was concerned. The Human Rights Commission has been doing a good job this year, issuing critical reports on the excessive use of force by members of the security services in dealing with public protests. This attracted the wrath of the executive, with the President attacking the Human Rights Commission. In the past, the Human Rights Commission has been hampered by lack of funding. A respected former chairman of the Human Rights Commission Professor Reg Austin resigned just a few months before the 2013 election frustrated by the lack of support for the commission. In recent years, it has had to rely on donor support for its operations. The lack of support notwithstanding, under the chairmanship of Elasto Mugwadi, the Human Rights Commission has demonstrated courage and a lot of promise in executing its constitutional mandate.
Anti-Corruption Commission
In respect to corruption, the Zimbabwe Anti-Corruption Commission was already in place and had gained more weight when it was made a constitutional body. The Ombudsman had never really handled cases of major corruption, that having been left to ad hoc commissions. Examples included the Sandura Commission in 1989 and the Chidyausiku Commission in 1997. Indeed, one of the major shortcomings of the Ombudsman was that the office did not play a major role in dealing with rent-seeking activities and corrupt conduct by public officers. This meant cases of rampant abuse of public funds and property went unchecked for many years. The culture of rent-seeking and corruption, which the South African Public Protector has confronted so publicly and effectively in recent years, flourished in Zimbabwe as both the Ombudsman and the Zimbabwe Anti-Corruption Commission failed to perform their mandates.
Independent Complaints Mechanism
Section 210 of the Constitution provides for the establishment of an independent complaints mechanism to handle public complaints against members of the security services. Legislation is required to “provide an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.” This mechanism is not just for investigating complaints, but it is also intended to provide remedial measures. I recall this well because it was a proposition I made modelled along the lines of the Independent Police Complaints Commission in the United Kingdom. I did not think it would work quite in the same way as the UK, but that if it was made a constitutional body it would have more authority and independence. The original provision set out a clear independent complaints commission, complete with provisions to guarantee its independence. However, regrettably, the final provisions which were adopted were more general and left the specific details to legislation.
In many way, this could be seen as the Ombudsman for the security services sector. Used effectively, this mechanism could provide an important avenue to resolve complaints against conduct of the security services. In particular, such a body has to be independent from the security services and from the executive. Regrettably, 3 years after the adoption of the Constitution, there is no legislation setting up this mechanism and therefore no avenue to resolve complaints against members of the security services. There is no appetite to set up an independent complaints mechanism to ensure the public has recourse against members of the security services.
Auditor-General
There is also the Auditor-General, an office established under section 309 of the Constitution. The general mandate is to audit the financial affairs of government and its institutions and to carry out special audits whenever asked to do so. It has a broad mandate, which if used effectively can be an important watchdog on the financial conduct of government, its departments and officers. Indeed, over the years, the Auditor General, Mildred Chiri has been performing a sterling job. Year and after year, she has been quietly churning out annual audit reports exposing serious shortcomings and irregularities in the use of public funds. However, no one has been listening to her or acting upon her recommendations. The media reports briefly after her reports are published but there are no follow-up investigations on the scandals and irregularities that are exposed.
Together the Zimbabwe Human Rights Commission, the Zimbabwe Anti-Corruption Commission, the Independent Complaints Mechanism and the Auditor General have important roles comparable to that of the Public Protector. However, they are burdened by the same weaknesses that hampered the old Office of the Ombudsman. They are perennially under-funded and short-staffed. For some, like the Auditor General, their powers of implementation are limited. They can only report and make recommendations but they have to rely on a compromised executive to enforce their recommendations. Where they try to be assertive, as did the Zimbabwe Human Rights Commission following a wave of demonstrations this year, they are subjected to political intimidation by the executive. Where they try to take legal action, as the Zimbabwe Anti-Corruption Commission has been trying to do following the scandal of abuse of ZIMDEF resources, they are hampered by an interfering executive. Besides, the bulk of commissioners are appointed on partisan lines and some of them are not fit for purpose. The same patronage which influenced appointments to the Office of the Ombudsman has affected appointments to the Zimbabwe Anti-Corruption Commission – where persons connected to members of the executive, including relatives, and others with a criminal history were appointed.
Conclusion
At the end of the day, all these institutions are controlled by the system, which dominates Zimbabwean politics. There would never be a Thuli Madonsela in Zimbabwe because the current system would simply not permit it. Even if Zimbabwe were to have a separate office of the Public Protector, it would not change anything. The same flaws and impediments which hamper existing bodies and which affect the independence of the judiciary would dilute the effect of the Public Protector. For all its flaws, at least the South African government is still open enough to have accommodated someone like Thuli Madonsela. Notwithstanding her brave and critical stance against government and the highest office in the land, she was still able to complete her term of office.
However, the reaction of the South African government to her critical stance should serve as a warning to her successors and other stakeholders interested to preserve the independence of the Office. It remains to be seen whether her successor will carry on from where she left with the same courage, vigour and independence. Many similar offices in Africa started off with great promise but over time, they became diluted and ineffective. Zimbabwe itself started off well on this front and there was much promise in the 1980s. We even appointed a foreign Ombudsman to reflect autonomy. However, as in many other African countries, an institution which scrutinised government was seen as counter-productive. Instead of strengthening it, it was weakened. The extended powers were merely theoretical, as in practice it became more and more irrelevant. The bodies that collectively play the Public Protector role in Zimbabwe today are similarly emasculated in practice.
So do we have a Public Protector in Zimbabwe? The most appropriate answer is both yes and no – no, because there is no single office of the Public Protector, but yes, because there are different offices which are supposed to play the role of Pubic Protector. The problem is that some of these offices, such as the Independent Complaints Mechanism have not even been established and some like the Zimbabwe Anti-Corruption Commission have shown themselves to be politically compromised and incompetent. All are under-resourced and under-funded. Overall, the current system is not ready for a Thuli Madonsela and the strengthening of these institutions is the least of the government’s priorities. The answer lies in an overhaul of the political system over which ZANU PF presides. As long as the system is in charge, these institutions are mere facades.
waMagaisa
