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BY
HELD IN
ABUJA, NIGERIA
I.
INTRODUCTION
II.
who committed illegal acts or failed to do what was expected of them. The
Ombudsman also acted as a protector of peoples rights. The success of the
Ombudsman in Sweden led to its adoption in Finland in 1919 and Denmark in
1953.
The establishment of the Ombudsman in Denmark marked the beginning of
adaptation and hybridization of the institution to the local circumstances.
However, the Danish model retained the characteristics of the Swedish
model and relied on soft power, commonly known as moralsuation, and cooperation rather than coercive or adjudicative means. The popularity of the
Danish model influenced the design of the institution in Norway, New
Zealand, Spain and some African countries. In Spain, the hybridization of the
Ombudsman, Defensor del Pueblo or Public Defender, was influenced by the
need to not only ensure administrative justice, but also protect the
fundamental rights recognized under the new political dispensation. 3 The
Spanish model was later adopted in Argentina, Bolivia, Nicaragua, Colombia
and Peru among others that were transitioning to democracy due to the
Spanish legal heritage in the Latin American region.
The Ombudsman was also adopted in other regions with New Zealand being
the first Commonwealth country to adopt it in 1962 before its adoption in the
United Kingdom in 1967. In Africa, Tanzania was the first country to adopt it
in 1966 through the establishment of the Permanent Commission of Enquiry
to safeguard the interest of citizens against the bureaucracy without
inhibiting Government or Party action in development activities. In Asia, the
institution spread to countries such as the Philippines, Fiji, Papua New
Guinea, Hong Kong, Macau, Indonesia, Malaysia and more recently East
Timor with multiple competencies. It also spread to the Caribbean, Pacific
and Northern American regions although in countries such as the United
States of America and Canada, the institution exits at the state and
provincial levels. It is instructive to note that Ombudsmen that were later
created in Africa and Asia radically changed the nature and powers of the
institution as known under the classical model leading to the birth of New
Ombudsman.
The global surge of Ombudsmania has seen its establishment in over 150
countries with 47 out of the 49 European countries creating it, 47 in Africa,
3
Asia and Latin America to protect administrative justice and the rights of
citizens.
IV.
L.C. Reif, (2004), The Ombudsman, Good Governance, and the International Human
Rights System, Leiden: Martinus Nijhoff Publishers 218-19
remedial action is similar to that of the Public Protector of South Africa. This
is an innovative jurisdiction of addressing non-compliance with
recommendations, which means that after carrying out inquiries,
investigations or adjudication, the Ombudsman can give binding decisions
and tangible remedies. In Kenya, the extensive nature of the jurisdiction of
the Ombudsman is evident from the definition of administrative action,
which includes:
a) a decision made or an act carried out in the public service;
b) a failure to act in discharge of a public duty required of an officer in
public service;
c) the making of a recommendation to a Cabinet Secretary; and
d) an action taken pursuant to a recommendation made to a Cabinet
Secretary.8
In Rwanda, the Ombudsman deals with anti-corruption and administrative
justice and access to information while that of Namibia deals with anticorruption, administrative justice and environmental protection. In Ethiopia,
the Ombudsman has an additional mandate of enforcing access to
information. In Nigeria, the Ombudsmans jurisdiction extends to private
actors in the context of matters relating to companies incorporated under or
pursuant to the Companies and Allied Matters Act.9
An interesting point to note is the endowment of the Ombudsman with
coercive powers such as powers to prosecute as is the case in Uganda,
Rwanda and Namibia. In Rwanda, the Ombudsman has the powers of bailiffs
and can request the Supreme Court to reconsider and review judgments
rendered at the last instance by ordinary courts, commercial and military
courts, in cases of injustices. These powers were hitherto known under the
classical ombudsmanship. The modification of the Ombudsman in Africa with
coercive powers was necessary since, as Hatchard has noted, it sought to
replace the first generation Ombudsman model in Africa with a more
effective second generation model. 10 In some cases such as Uganda, Ghana
and Tanzania, the Ombudsman was strengthened with broader jurisdictions
and stronger powers to respond to the needs of the particular countries.
8
9
10
The jurisdiction of this generation is extensive and covers all public offices,
including Parliament. The strengthening of the Ombudsman was occasioned
by the ineffectiveness of compliance through Parliamentary reporting due to
(i) the nature of formation of Parliament in many African countries, (ii) the
nature of work of the Ombudsman, especially where it also incorporates the
anti-corruption mandate. In such cases, Parliamentarians would work
towards making the office ineffective to their benefit. Reports would be
received by Parliament and never be discussed or contents revealed, (iii) the
politicization of the Ombudsman decisions as the office checks public offices
and the Government. The recommendations are, therefore, swept to the
back burner.
11
i)
V.
12
See Goldstone J in President of the Republic of South Africa v Hugo, 1997 (4) SA 1
(CC); 1997 (6) BCLR 708 (CC) at para 11. The State Institutions Supporting Constitutional
Democracy or Chapter 9 Institutions are the Public Protector, the Auditor General, the
South African Human Rights Commission, the Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic Communities, and the
Commission for Gender Equality.
12
This position has now been affirmed by the Supreme Court of South Africa in
the recent case, the South African Broadcasting Corporation Soc. Limited
and Two Others versus the Democratic Alliance and Six Others where it held
that although Chapter Nine institutions execute their mandates in terms of
national legislation, they are neither organs of the state within the national
sphere of government nor are subject to control or direction by the
Executive.14
Drawing from the South African experience, it is safe to state that the
independent oversight institutions, such as the Ombudsman, are institutions
of the State which are outside government, but which are sui generis. This
position finds support in the primary objective of these bodies of protecting
the sovereignty of the people, which Murray aptly notes relates to the power
to monitor government and cannot, therefore, be through the exercise of
13
14
Murray, C. (2006). The Human Rights Commission et al: What is the Role of South
Africas Chapter 9 Institutions? PER, 9(2), p. 126.
SABC vs DA (393/2015)[2015] ZASCA 158 at para 25.
13
This position does not derogate from the famous preposition by Montesquieu
on the principle of separation of powers. 17 Instead it supplements it. In any
event, Montesquieus theory was not static; it reflected the position of a
small and uncomplicated government at the time.
B. ROLE OF THE OMBUDSMAN IN GOVERNANCE
Generally, the main function of the Ombudsman is the redress of
maladministration. Maladministration or bad administration refers to
administrative action or inaction based on or influenced by improper
considerations
or
conduct.18
The
most
conventional
forms
of
maladministration range from simple clerical errors to serious acts of
impropriety such as:19
injustice, failure to carry out legislative intent, unreasonable delay,
administrative error, abuse of discretion, lack of courtesy, clerical error,
oppression, oversight, negligence, inadequate investigation, unfair policy,
15
16
17
18
19
14
21
R. Ranjan, Concept and Role of the Ombudsman Institution in Asia in Improving and
Maintaining Public Service Delivery.
Administrative Justice and Tribunals Council. (2010). Principles for administrative justice.
16
The review jurisdiction of the Ombudsman has now been fully developed
globally to complement the judicial dispute resolution system as noted by Sir
Morgan, the Lord Chief Justice of Northern Ireland that:23
the real distinction between the work of the courts and the Ombudsman lies
in the differing objectives which each seeks to fulfill. The court is often well
placed to identify individual or systemic failure constituting unlawfulness and
to quash the decision or direct in relation to the individual case. The scope of
the Ombudsmans inquiry is much broader because it is concerned not just to
identify individual or systemic failure but to engage with the systems of
government to secure systemic redress in order to prevent repeated
administrative failure. It seems to me, therefore, that each of us has a
complementary role in ensuring an accountable and effective system of
administrative law.
In relation to the competencies over each other, it is worth noting that the
Ombudsman can investigate administrative malfeasance in the courts. This
would not be an affront to judicial independence since administrative
malfeasance is an administrative matter that falls within the ambit of the
Ombudsman.24 In this case, the Ombudsmans role is confined to ensuring
procedural efficiency and administrative propriety of the judicial system. 25 On
the other hand, the Ombudsman is amenable to the judicial review
22
23
24
25
17
Similarly, in the case of Bradley & Others v Secretary of State for Work and
Pensions, the English Court held that the finding of fact by the Ombudsman
could only be impugned where it was objectively shown to be flawed or
irrational, or peripheral or there is genuine fresh evidence to be considered.
28
The Court further observed that the purpose of judicial review was simply
to require the decision maker to consider the Ombudsmans
recommendation as a proper basis.
In spite of the foregoing, courts have not appreciated the role of the
Ombudsman in the review of administrative action. In a number of countries,
the approach by the courts has been to consider the Ombudsman as
competitors or threats to the judiciary. Decisions have been made by the
courts that undermine the Ombudsman. In Republic of Kenya vs Vision 2030
Delivery Board and the Commission on Administrative Justice, Ex-Parte Eng.
Judah Abekah, the issue before the High Court was the enforcement of a
decision of the Kenyan Ombudsman against the Vision 2030 Delivery Board,
a public body which had been found to have acted unfairly. 29 The High Court
surprisingly held that there was no legal obligation for public agencies to
comply with the recommendations of the Commission. Interestingly, the
26
27
28
29
In isolated jurisdictions such as Fiji, the Ombudsman is not subject to judicial review.
Under section 139(1) of the Constitution of Fiji, the Ombudsman enjoys immunity from
review by any court of law.
Commission on Human Rights and Administrative Justice v Norver (2000-2002) 1 GLR
78.
Bradley & Others v Secretary for Work & Pensions [2007] EWHC 242 (Admin),
[2008]All ER (D) 98.
Nairobi High Court Judicial Review Case No. 223 of 2014.
18
VII.
No 14 Above
J. McMillan, The Ombudsman and the Rule of Law Commonwealth Ombudsman, to
the Public Law Weekend, Canberra, 5-6 November 2004.
19
VIII.
32
33
No. 14 Above
The two other Commissions that were created by the restructuring are the Kenya
National Commission on Human Rights and the National Gender and Equality
Commission.
21
The Commissions mandate covers all State and Public Offices and Officers,
under both national and county governments. In sum, the Commissions
mandate encompasses the traditional role of the Ombudsman with unique
additional responsibilities. The Commission has three Commissioners
comprising the Chairperson, Vice-Chairperson and a Member whose
responsibility is to provide strategic direction and policy formulation to the
Secretariat headed by the Commission Secretary and Chief Executive Officer.
The appointment of Commissioners to the Commission is competitive,
transparent and inclusive, and involves public vetting, approval by the
National Assembly and formal appointment by the President.
i)
In the conduct of its functions, the Commission has the following powers of
court:
issuance of summons or other orders
adjudication
require statements being given under oath
obtain relevant information
compel production of relevant information
conduct interviews
compel attendance of the Commission
conduct searches and inspections
require disclosure of relevant information
One of the significant aspects of the framework is the power of the
Commission to take remedial action under Article 59(2)(j) of the
Constitution and Section 8(c) of the Act in respect of matters it handles. This
provision goes beyond the conventional jurisdiction of the ombudsman, as
known worldwide. This means that after carrying out the inquiries or
investigations, the Commission can provide tangible remedies. For instance,
the Commission can offer remedies such as recommendations for
compensation, specific performance, restitution (in the context of
employment disputes) and apology among others.
22
Complaints Handling
23
Summons
Summons is issued where a public agency or
the Notice to Show Cause or co-operate
investigations. This power is similar to that
which would amount to contempt and attract
ii)
Performance Contracting
address and resolve public complaints lodged with and against them. In this
respect, public institutions are obligated to establish mechanisms of working
with the Commission to address complaints they have received. Specifically,
the Commission is the lead agency in public complaints indicator in
performance contracting and rates public institutions on compliance with the
set guidelines. Under this system, public institutions are required to submit
quarterly reports detailing complaints received and action taken. The
Commission thereafter rates each institution and issues a certificate showing
performance in percentage, which guides the overall national rating of the
institution.
In order to enhance effectiveness, the Commission has reviewed the
parameters (Guidelines) for the Indicator which aligned this function with its
internal complaints handling function. One of the parameters in this regard is
status report on the implementation of any recommendations and decisions
of the Commission, the default of which attracts sanctions which may include
deduction of marks or non-certification. This mechanism has enhanced the
level of compliance with recommendations and decisions of the Commission
since certification of the Commission is key in the overall system of
performance contracting.
iii)
36
The Superior Courts in Kenya are the Supreme Court, Court of Appeal and High Court,
Industrial Court, Environment and Land Court while the Subordinate Courts are the
Magistrates Courts, Kadhis Courts, Courts Martial and any other Court or tribunals
established by an Act of Parliament.
Regulation 34(2) of the Commission on Administrative Justice Regulations, 2013
25
interested party. Some of these matters have provided novel and new
jurisprudence in administrative justice and the rule of law in Kenya and
restated the place of the Ombudsman in Kenyas governance system. One
such matter was a complaint where it was alleged that the Executive had
failed to pay the complainant, a police torture victim, 7,122,915 Kenya
shillings that had earlier been awarded by the High Court in Embu. In this
matter, the Commission went to court to compel the Executive to comply
with the court order by paying the award. 37 Although the matter is pending
before the Court, the action has elicited action by the Executive who have
proceeded to make part payment of 5 million shillings.
In another matter, the Commission moved to court to challenge the eligibility
of a Member of Parliament (MP) to serve in public office following his
conviction of abuse of office in 2004. Article 99(2)(h) of the Constitution and
Section 24(2)(h) of the Elections Act provide that a conviction of abuse of
office is one of the grounds for disqualification for election as an MP. In this
matter, the High Court sitting in Nairobi dismissed an application by the
Independent Electoral and Boundaries Commission (IEBC) of Kenya and the
MP to have the matter dismissed on grounds of non-compliance with
procedures provided for under the Elections Act. Although IEBC and the MP
have appealed to the Court of Appeal, the matter is likely to go for full
hearing, which will set a precedent in Kenya in relation to constitutionalism
and integrity.
iv)
Reporting Mechanism
Nairobi, Judicial Review Application No. 171 of 2014; the Commission on Administrative
Justice vs. the Principal Secretary, Ministry of Interior and Co-ordination of National
Government & the Attorney General
38
Article 59(2)(j) of the Constitution and Section 8(c) of the Act
26
Citation Register
CONCLUDING REMARKS
Maladministration, corruption and human rights violations are inconsistent
with the rule of law and constitutionalism. They undermine good governance
and pose a serious threat to stability of the state. The governance landscape
in many countries in Africa is characterized with the above social evils that
continued to threaten their existence. The Ombudsman, as one of the
institutions forming the integrity branch of government, must fearlessly and
objectively discharge its duties. To this end, the Ombudsman must be truly
independent since this largely determines its success and credibility. Second,
the Ombudsman must remain relevant to the society in which it operates.
This would inevitably require the Ombudsman to adapt to the changing
needs of society through innovation, as was succinctly stated by Jamieson
thus:
39
40
41
42
43
44
Article 252(3)(a) of the Constitution, Section 28(2)(a) of the Act and Regulation 19(g)
of CAJ Regulations
Section 26(e)) of the Act and Regulation (19(h) of CAJ Regulations
Section 26(d) of the Act and Regulation 19(b) of CAJ Regulations
Section 26(c) of the Act and Regulation 22(4)(a) of CAJ Regulations
Section 52 of the Act and Regulation 18(b) of CAJ Regulations
Section 8(g) of the Act and Regulation 21(b) of CAJ Regulations
28
46
Enhancing Human Rights and Strengthening Government Accountability: Redesigning the Ombudsman for the 21st Century, Presentation by Roberta Jamieson, the
Ombudsman of Ontario, Canada, at the The Ombudsman in Africa in the New Millennium:
Eastern and Southern African Regional Ombudsman Conference held in Kampala, Uganda
on 25th August 1998.
The Judiciary of the Republic of Kenya. (2014). State of the Judiciary and the
Administration of Justice, Annual Report, 2012-2013, Nairobi.
29
* DR. OTIENDE AMOLLO, EBS, LL.B, LL.M, Doctor of Letters (H.C), CPS (K),
Advocate, Commissioner for Oaths & Notary Public, Chairperson of the
Commission on Administrative Justice (Office of the Ombudsman of Kenya),
Secretary General of the African Ombudsman and Mediators Association, former
Chairperson of the International Commission of Jurists (K), former Secretary
General of the East Africa Law Society, and former Member of the Committee of
Experts on Constitutional Review of the Republic of Kenya.
30