The mandate of the Office of the Ombudsman, as the public protector, is to strengthen constitutional democracy in pursuit of its constitutional obligation by investigating, rectifying and redressing any improper or prejudicial conduct in state affairs and resolving related disputes through mediation, conciliation, negotiation and other measures to ensure fair, responsive and accountable public sector decision-making and service delivery.
In pursuit of the mandate, previous bearers of the position have been labelled ineffective and failing in the office’s strategic objectives. Public Eye reporter IRENE SEME (PE) engaged the new Ombudsman TLOTLISO POLAKI (TP) to establish how she intends to be accessible and trusted in promotion of good governance in the conduct of all state affairs and ensuring an efficient and effective organisation with an optimal performance and service-focused culture.
PE: You have just been appointed the new public protector, the Ombudsman. Congratulations, and what does the appointment mean to you as a legal professional?
TP: Thank you – I am greatly humbled. At the outset, the Office of the Ombudsman is an independent institution and subject only to the Constitution and the law. It means the Ombudsman cannot be the subject of any directions and control by any person or authority – my presence cannot therefore be arbitrary and this helps in that the independence ensures and prevents interference and obstruction.
I have to operate in a manner that shows a level of impartiality in the exercise of statutory powers and in the performance of my duties and functions without fear, favour and or prejudice. No person, ministry or agency of government may therefore interfere with the functioning of the office.
The Ombudsman is also enjoined by law to account and report to Parliament annually by way of providing summary reports and periodically, through the submission of special reports and providing recommendations on remedial action, including payment of compensation in circumstances where there has been flagrant disregard and non-compliance with the recommendations of the Ombudsman.
It says to me I need to facilitate fair resolution to build trust and fortify relationships between individuals and government ministries and its agencies for as along as issues raised fall within our mandate areas, that is, maladministration and injustice, violation of human rights, corruption and degradation of the environment.
As a legal person, I also find it critical to highlight that the Ombudsman is precluded from undertaking investigations on the King, Parliament, Cabinet, Judiciary and the Public Service Commission (PSC).
Notwithstanding the fact that jurisdictionally there are these limitations, fair administration of justice extends to the workings of courts and the PSC in relation to their failure to undertake their work or delays caused in the justice system and corruption.
This exception is an area that requires special attention given the backlog of cases in our courts and bureaucracies in the recruitment and placement systems by the PSC. The legal maxim ‘justice delayed is justice denied’ holds true and so if legal redress or equitable relief to a complainant is available but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.
PE: Since its establishment and having observed the operations of this office from the side, do you think it has served the purpose for which it was founded and, if not, what are the challenges?
TP: The purpose for which the office was set up has been served albeit, to some extent. The only disjuncture is that it is deemed a toothless watchdog as the decisions that it provides are not final and are non-binding recommendations which give the party against whom a decision has been made the discretion not to comply.
We strive to encourage government ministries and agencies to be transparent and accountable and we do recognise that government ministries have power inequities and that certain members of the public are also more vulnerable than others. Our role as an institution is to promote fairness and best practices in government institutions and agencies through processes and we advocate for timely, informal resolution where possible.
Now non-compliance to recommendations creates delays and wastes a lot of time in follow-ups which in itself is self-defeating and creates an injustice to members of the public who would have approached the office with the hope that their matters will be resolved timeously. Overall, our role has to be strengthened so that enforcement of decisions will be easier and quicker.
There is a lot of good work that has been undertaken since the establishment of the office to date. While there is generally cooperation from ministries, we do recognise as well the backlog created by non-compliance to recommendations by some ministries and we cannot deem any such matters as concluded until such a time that our recommendations have been implemented.
Another key obstacle has been created by the lack of full autonomy by the office. The office is deemed constitutionally independent but administratively, still a functionary of government.
We receive an allocation of funding from government which is very limited and are operating on a recurrent budget which essentially means that we cannot effectively fund any key projects identified in any given year.
Secondly, recruitment is undertaken by the PSC and often, officers within the core function (investigative team) are transferred from other government departments on a lateral movement without appreciating the uniqueness of the services offered and we then have to retrain officers on a continuous basis.
The other key challenge pertains to the delays in filling vacant positions which compromises general investigative work because of the workload that has to be shared among the few individuals remaining. The institution should operate with full autonomy and recruit specialist skills in the market to better deliver on its wide mandate. This is an area deserving of a review, more particularly as we are moving towards increasing efficiencies and striving to build a cadence of excellence as an institution.
PE: How do you plan to overcome these now that you are in charge?
TP: There are a number of measures and strategies that can be employed in ensuring that decisions of the Ombudsman are adhered to; strengthening support with regular engagements and workshops with responsible ministries through their principal secretaries and parliamentarians on understanding our mandate and the criticality of compliance to recommendations of the Ombudsman.
We can even extend it further to generate common plans to promote our role within ministries and agencies of government. I am also eagerly awaiting the reforms processes to conclude and the Omnibus Bill to be fully considered by parliament and be promulgated as part of the amendments relate and impact on our work directly. It is important for the decisions of the Ombudsman to be deemed final and binding in nature.
Our approach in general in the way we undertake our work generally, our responsiveness to public needs for better outcomes will surely increase efficiencies once we have reviewed all our processes and procedures. We will be working on having a more effective complaints resolution monitoring system in place in the current financial year.
PE: The Ombudsman is generally viewed as a toothless dog, making calls that nobody takes seriously, let alone implement. Should we expect more bite from the office now?
TP: The Office of the Ombudsman is one of the key indispensable institutions that protects the fundamental rights and freedoms of persons under the Constitution.
We remain hopeful that its role will be strengthened with the legislative reforms proposed as the current state affects the basic functioning of the office. The amendments will grant us sharper teeth and ensure that decisions and or recommendations are final and enforceable in law.
PE: The legal framework establishing the office of the Ombudsman, does it allow it to effectively be what it was meant to do?
TP: The legal framework establishing the office does allow it to exercise its powers as it was initially intended to do, albeit the challenges identified on its limited autonomy on administrative issues. It brings a number of challenges as outlined and compromises its agility given the fact that it is unable to move quickly and easily in terms of actioning some decisions that would enhance service delivery and accountability, that is, finances and staff recruitment as alluded to above.
PE: What can be done to improve the office and its effectiveness?
TP: Policy on the independence and full autonomy of the office will go a long way in providing redress to some of the challenges identified. In fact, at a comparator level, we affiliate with regional and international bodies and continue to align with recognised standards for Ombudsman institutions for continued improvement.
We have learnt through interaction with counterparts that for an office of this nature to be effective, it has to maintain total autonomy, particularly in its finances, recruitment of staff and total independence as a watchdog carrying out its administrative functions and mandate. Lack of autonomy impacts negatively on our effectiveness and ability to deliver our mandate better and hinders meaningful contribution.
PE: Lastly, you have become the second woman to hold this office in its history. What does it mean to you as a female professional to be entrusted with such a responsibility and what should it mean to other professional women dreaming of making an impact in the professional world?
TP: As a woman professional, I would say that women have an enormous ability to lead in high places and also to rise above boxed socio-cultural barriers to own their leadership and governance journeys.
And if not anything else, it serves as a reminder to our nation yet again that we must continue to champion inclusive spaces at all levels for women to thrive and have equal opportunity to lead. To other professional women dreaming of making an impact in the professional world, I would say that the sky is the limit and if you continue to perform your functions with utmost efficiency, competence, purpose and results, nothing can dim the light that shines from within and once you let your light shine, you will not need to tell anybody it does – your work will speak for itself. Let us continue to aspire to inspire.
PE: What would you like to be remembered for when you leave the office?
TP: First, for creating an effective and slim operation with enough resources to be proactive – it is time to refine and do things differently based on rationality and other considerations. Secondly, promoting more visibility and accessibility on our service offerings. For me its important that we work as openly and publicly as possible. First, it is important for the public that might have reason to complain and openness helps inform them of their rights to complain and how they can actually lodge such issues.
Secondly, it is imperative that the Ombudsman office should have the confidence of all parties and this can only be achieved if the public has access to the prescribed standards and procedures and how they operate on a practical level.
Accordingly, promoting the office through more aggressive public awareness campaigns and outreach initiatives remains one of the key imperatives and priorities that will go a long way in ensuring that the public is more informed around how the office can assist them in seeking remedial action from public entities concerned. Thirdly, that as a complaint driven operation giving complainants high priority, I aim to investigate on my own initiative, a lot more systemic and poor administration matters that call for action, funds permitting.