Ouster Clauses, Judicial Review and the Botswana Ombudsman: A Need Reform?

Abstract

The role of the Ombudsman is to ensure that the government fulfils its legal obligations to provide services to the citizenry as required by set laws and policies. The Ombudsman achieves this role through education, investigation of reports of violation of set laws and policies and by facilitating the implementation of recommended remedial action where injustices are found to have occurred. It is not disputable that the Ombudsman plays a pivotal role in supporting democracy in any given country. The existence of the Ombudsman institution has however brought with it issues which continue to be debated globally. One of such issues is whether the courts of law can subject Ombudsman decisions to judicial review where one of the parties to an investigated matter is aggrieved by such a decision. Some countries have legislated to bar the courts from reviewing decisions of their Ombudsman offices through ouster clauses. Some countries do not have such clauses which purport to oust the courts from reviewing ombudsman decisions and indeed they have cases in which decisions of the Ombudsman was reviewed by the courts of law. This article asserts that courts of law have original inherent jurisdiction to review ombudsman decisions. There is case law to the effect that the courts will review the decision of any legally constituted body despite the existence of an ouster clause in the legislation establishing such a body. Courts have established that they will review the decisions of any statutory on four grounds being: informality of procedure, ultra vires, misuse of power bona fide and misuse of power mala fide. This article concludes with a call for the amendment of the Botswana Ombudsman Act particularly to repeal the ouster clause in Section 9 (1) of the Ombudsman Act. The clause is a waste of the legislature’s ink as it cannot deter the Courts from reviewing a decision of the Ombudsman.