“The Ombudsman and Administrative Justice: International Best Practices and Lessons of

Experience from Kenya and Elsewhere”

BY

DR. OTIENDE AMOLLO*

A PAPER PRESENTED TO THE 40TH ANNIVERSARY RETREAT OF THE PUBLIC COMPLAINTS COMMISSION (NIGERIAN OMBUDSMAN) ON THE THEME ‘REPOSITIONING THE

OMBUDSMAN FOR BETTER PERFORMANCE’

HELD IN

ABUJA, NIGERIA

16TH OCTOBER 2015

I. INTRODUCTION

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Administrative justice is one of the foundational tenets of good governance and constitutionalism. It is a determinant of good governance and is at the heart of modern Constitutions. A sound administrative system exemplifies good governance. Maladministration and corruption are some of the main obstacles to a sound administrative justice system. The Ombudsman is one of the institutions that seek to ensure good governance through redress of maladministration and corruption. The Ombudsman provides citizens with a cheap, accessible, expeditious, objective and impartial platform for redress of their grievances against public institutions and officers.

While the appreciating its role in ensuring good governance, many African countries have created the Ombudsman with extensive jurisdictions and powers. This modification was not accidental or fashionable; it was dictated by the peculiar circumstances of African countries. Most of these countries had teething governance challenges that required strong institutions for redress. As a result, the administrative justice landscape in Africa is presently characterized by new or second generation Ombudsmen with extra-ordinary mandates and powers that would confound the classical model. The foregoing notwithstanding, the African Ombudsman is faced with numerous challenges that undermine its effectiveness. In many African countries, the realisation of good governance is still a mirage, impunity is rampant and the rule of law is not regularly observed coupled with arbitrary exercise of state power.1 The pertinent questions are, what model of Ombudsman works in Africa? How can the institution effectively operate in the African setting to protect the public against the might of the state? This paper explores the nature of the Ombudsman in Africa, its role and the best practices from Kenya.

II. CONCEPT OF OMBUDSMAN: HISTORY AND DEVELOPMENT

A. CONCEPT OF OMBUDSMAN

1 ‘Information, Coordination, Training, Advocacy and Research needs of the African Ombudsmen and Mediators Association,’ Cited in African Ombudsman Research Centre Report, June 2011, 17.

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The ‘Ombudsman’ is derived from a Swedish word meaning agent, representative of the people or entrusted person. The part word ‘man’ is gender neutral and does not connote that the holder must be of the male gender. In its classical form, the Ombudsman has been defined by the International Bar Association as:2

An office provided for by the constitution or by action of the Legislature or Parliament and headed by an independent high-level public official who is responsible to the Legislature or Parliament, who receives complaints from aggrieved persons (alleging maladministration) against government agencies, officials and employees or who acts on his/her own motion, and who has the power to investigate, recommend corrective action and issue reports.

This definition mainly describes the traditional or classical Ombudsman as conceived in Sweden and other Western countries; it does not quite describe the hybrid or ‘new’ Ombudsman that presently form the landscape of many emerging democracies in Africa, Asia and Latin America. In the first place, the definition assumes that the Ombudsman is a creature of and relies on Parliament for its existence. A number of countries have institutionalized the Ombudsman through entrenchment in Constitution. Second, unlike the classical Ombudsman, the ‘new’ Ombudsman can investigate Parliament for maladministration or corruption. Third, the definition takes the assumption that the Ombudsman can only recommend and not take remedial action in instances of administrative deficiencies or injustices. As will be seen later, a number of Ombudsmen have been given powers to give remedial action which goes beyond the role of the classical Ombudsman of merely giving recommendations.

B. HISTORY AND DEVELOPMENT

The history of the Ombudsman is as old as mankind. It is embedded in the social contract theory whose main objective was to create societal order. In this arrangement, few individuals who exercise power on behalf of society 2 IBA, August 1974 Resolution at Vancouver meeting of official delegates of member

organisations, ‘Ombudsman and other Complaint Handling Systems’ X (1980-1)1.2

must do so according to the established rules. Where they act in excess of their powers, the people can exercise their residual power to ensure accountability. This engendered the principle of ‘oversight’ which is evident in all religions and societies. In Christianity, for instance, Prophets played the role of the Ombudsman. They always advised and rebuked Kings on various matters. A notable illustration comes from Prophet Nathan who rebuked King David about his excesses against Uriah the Hittite. His brave and famous words to King David ‘It is you my Lord’ aptly capture the role of that the Ombudsman should play in society.

In the Africa, a number of traditional societies had individuals who played the role of the Ombudsman. These were respected people of high standing who could easily interact with both the citizens and the rulers. In Rwanda and South Africa, for instance, there existed an equivalent of the Ombudsman who performed the roles of advising and reprimanding the traditional rulers on matters of interest to the people. The Makhadzi among the Venda Community in South Africa acted as the link between the people and those in power, and always voiced their concerns with the rulers.

Elsewhere, in the Greek cities of Sparta and Athens, an equivalent of the Ombudsman, Eflore and Euthynoi, oversaw the activities of Government employees and Municipal activities between 700 BC and 500 BC. This was later adopted by the Roman Empire where an equivalent institution was created around 300 BC to protect and defend fundamental rights. In China, during the Han Dynasty from 3 BC to 220 AD, the Emperor assigned a civil employee, the Yan, to exercise a systematic and permanent control of the imperial administration and its civilian employees. He also received petitions from the public for administrative injustices. Similarly in India, there were special officials who performed roles in the manner of the Ombudsman, which later influenced the use of the local word ‘Lokayukta’ to describe the Ombudsmen in the twelve Indian states.

The Ombudsman as we know it today can be traced to Sweden when King Charles XII signed a decree establishing the Hogste Ombudsmannen, the Highest Ombudsman, in October 1713. This was at a time when Sweden lay in ruins, being ruled by a king who lived far away after years of war and hardship. The Highest Ombudsman was to ensure that state officers acted in accordance with the law. This later metamorphosed into what is today known as the Chancellor of Justice. On the other hand, the Swedish Parliamentary

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Ombudsman, Justitie Ombudsman, was formally established in 1809 as a representative of Parliament to control the observance of the law by courts and government employees. He was empowered to take action against those who committed illegal acts or failed to do what was expected of them. The Ombudsman also acted as a protector of people’s 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 co-operation 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

3 M. R. Buades, ‘The Internalization of Human Rights, Constitution and Ombudsman in Spain’ in ‘Ombudsman and Human Rights: Proceedings of Symposium’ 37 42(Nat’l Ombudsman of the Neth. Ed, 1995 cited in L.C. Reif ‘Transplantation and Adaptation, the Evolution of the Human Rights Ombudsman’ 31 BC Third World L.J. 284.

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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, 14 in Latin America, 17 in Asia, 11 in the Australasian and the Pacific region and 4 in North America, with the United States and Canada having regional (States and Provinces respectively) and private sector Ombudsmen. While the Ombudsman has been christened differently in every country, it has retained the conventional mandate of public defender, albeit with some modifications, as symbolized by the official names in different countries. For example, it is known as the ‘Public Protector’ in South Africa, ‘Comptroller of the State’ in Israel, ‘Supplier of Justice’ in Portugal, ‘Mediator’ in France, ‘Civic Defender’ in Italy, ‘Inspector-General of Government’ in Uganda, ‘Defender of the People’ in Spain and ‘Public Complaints Commission’ in Nigeria.

The growth of the Ombudsman led to the creation of the International Ombudsman Institute in 1978 and the African Ombudsman and Mediators Association in the 1990s to promote ombudsmanship and good governance. Such umbrella bodies have also been established in other regions.

The concept has now been firmly embedded in the global legal system through the extension beyond the public sector to the supra-national bodies such as the United Nations, the Commonwealth, African Development Bank, European Union, and the private sector. However, it is noteworthy that the Ombudsman concept has been dynamic to the extent that even the classical ones have been given additional mandates such as freedom of information, protection of privacy, child protection and health system oversight. In Sweden, the role of Ombudsman was expanded vide a legislation in 1986 to include protection of fundamental rights and freedoms of citizens in public administration.

III. THE GLOBAL RISE OF THE OMBUDSMAN

One of the pertinent questions that arise is why did the Ombudsman grow exponentially worldwide in the last five decades? A number of factors fueled the unprecedented growth of the Ombudsman in world from 1960s. First and foremost, the growth of the welfare state after the Second World War

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resulted in the proliferation of administrative agencies within the state characterized by complex relationships that needed protection of the citizens against exercise of discretionary powers by the bureaucracy. This led to the rise of complaints of maladministration by the public as aptly noted by Professor Rowat thus:

It is quite possible nowadays for a citizen’s right to accidentally crushed by the vast juggernaut of the government’s administrative machine. In this age of the welfare state, thousands of administrative decisions are made each year by government or their agencies, many of them by lowly ranked officials; and if some of these decisions are arbitrary or unjustified, there is no way for the ordinary citizen to get redress.4

The existing accountability mechanisms, the Legislature and the Judiciary, could not adequately provide protection hence the establishment of the Ombudsman to complement the existing mechanisms.

Second, the emphasis on fundamental rights and freedoms after the Second World War required a specialized protection mechanism. The Ombudsman fitted in this new paradigm shift explaining the reason for the adoption of the Danish model in many countries. Third, the increasing work of the legislature diminished its capacity to legislate, represent the electorate, provide oversight and at the same time deal with grievances against an expanding and complex bureaucracy. Worse still, the legislature was not well suited to deal with minor incidences of maladministration, and even in Parliamentary systems, the parliamentary question time was always inadequate. A mechanism had to be created to supplement legislative oversight. The Ombudsman fitted well in its design and formulation in Sweden hence the model of Parliamentary Ombudsman.

Fourth, in many emerging or transitioning democracies Africa, Asia, Eastern Europe and Latin America, there were challenges of corruption, maladministration, impunity and human rights violations that needed multi-faceted approaches. The Ombudsman, being an independent office, provided an avenue for addressing such issues and strengthening good governance. Fifth, litigation as a mechanism for addressing administrative injustices was expensive, slow and complicated and could not adequately respond to the changing needs of society. Moreover, an increasing nature of administrative 4 D Rowat ‘An Ombudsman Scheme for Canada’ (1962) 28 Canadian Journal of

Economic and Political Science 253.6

injustices such as discourtesy were deemed non-justiciable and could, therefore, not be handled through litigation. The Ombudsman provided the alternative platform for addressing such grievances expeditiously, fairly and cheaply. Sixth, the end of the Cold War, collapse of the Soviet Union and the subsequent wave of democratisation in the late 1980s created the impetus for the creation of the institution in many countries in Africa, Eastern Europe, Asia and Latin America to protect administrative justice and the rights of citizens.

IV. HISTORY AND DEVELOPMENT IN AFRICA

A. MODIFICATION IN AFRICA

In Africa, the growth of the Ombudsman in the last five decades has been phenomenal. From its humble beginnings in Tanzania in 1966, the Ombudsman has grown to over 44 countries. The philosophy behind the creation of the Ombudsman in Tanzania was informed by the report of the Permanent Commission of Enquiry which emphasized the need to provide safeguards for citizens against the exercise of wide discretionary powers and decisions of government officials in a rapidly developing country.5 In 1966, Ghana established the Expediting Committee of the National Liberation Council under the military rule that performed duties similar to those of the Ombudsman. The Ghanaian Constitution had provided for an Ombudsman, but it was not until 1980 that it was operationalized with the enactment of the Ombudsman Act. In Mauritius, the institution was operationalized in 1970 although it had been created by the Constitution in 1967. In Zambia, the Ombudsman, Commission for Investigations, was created in the 1973 and began its work in 1974 while in Zimbabwe it was operationalized in 1982. In Sierra Leone, it was created in 1991, but was operationalized in 2000, while the Gambia established it in 1997.

In Nigeria, the Public Complaints Commission was established in 1975 with the headquarters in Abuja and offices in the 19 regional states. In Kenya, the idea was conceived in 1971, but it was not until 2007 that an equivalent body, Public Complaints Standing Committee was established through a gazette notice as a department of the erstwhile Ministry of Justice and 5 Report of the Presidential Commission on the Establishment of a One-Party State

(1965) Government Printer: Dar es Salam, 32 cited in M. Reddi and D Barraclough ‘An African Journey Towards Good Governance: The History of the African Ombudsman and Mediators Association.’

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Constitutional Affairs.6 A fully fledged Office of the Ombudsman known as the Commission on Administrative Justice, was finally established in Kenya in 2011 vide the enactment of the Commission on Administrative Justice Act, 2011 pursuant to Article 59(4) of the Constitution of Kenya, 2010.

However, the exponential growth of the institution was witnessed in the 1990s following the end of the Cold War and subsequent constitutional changes in many African countries. 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. The establishment of the institution was either by the Constitution, statute or Executive decree, although the newer Ombudsmen are increasingly being created by the Constitution. The import of the foregoing is that, unlike the classical model, the African Ombudsman is not necessarily a Parliamentary model; it does not rely on Parliament for its existence or report to it for implementation of its findings and recommendations.

B. THE NEW OMBUDSMAN IN AFRICA

One of the striking and unique features of the African Ombudsman has been its adaptation to the circumstances of the different African countries. While the essential characteristics of the classical Ombudsman have been retained, the majority of African countries have adopted different models with multiple competencies such as human rights protection, anti-corruption, leadership enforcement and environmental protection among others. According to Reif, this was necessitated by the fact that:7

Most post-independence states in Africa were military regimes or one-party states…a number of African states continue to suffer from recurrent civil conflict…as a result…African ombudsmen did not duplicate the classical ombudsman model, and adapted the concept to fit the political, legal, economic and social peculiarities of Africa.

As an illustration, the Tanzanian Commission for Human Rights and Good Governance deals with both human rights and administrative justice; the

6 Government of Kenya, (1971) Report of the Commission of Inquiry (Public Service Structure and Remuneration Commission) The D.N. Ndegwa Commission, Commission Report, Nairobi: Government Printers.

7 L.C. Reif, (2004), The Ombudsman, Good Governance, and the International Human Rights System, Leiden: Martinus Nijhoff Publishers 218-19

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Ghanian Commission on Human Rights and Administrative Justice has a three-fold mandate of human rights, anti-corruption and administrative justice. In South Africa, the Public Protector deals with administrative justice and corruption as is the case with the Inspector General of Government of Uganda who also enforces the Leadership Code. In Kenya, the Ombudsman ensures administrative justice in the public sector and is empowered to ‘adjudicate’ on such matters and ‘take remedial action.’ The power to take 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; andd) 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 anti-corruption, administrative justice and environmental protection. In Ethiopia, the Ombudsman has an additional mandate of enforcing access to information. In Nigeria, the Ombudsman’s 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 8 Section 2 of the Commission on Administrative Justice Act9 Section 5(2)(d) & (e) of the Public Complaints Commission Act

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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.

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.

C. TYPES OF OMBUDSMEN IN AFRICA

In spite of the modification, there is no common model or approach of an Ombudsman in Africa. There are different strands depending on the particular circumstances of every country. The distinctions can be understood from the different structures and mandates, that is, public sector versus private sector; parliamentary versus non-parliamentary; single membership versus collegiate membership; and fused versus un-fused.

Private Sector Ombudsmen are found in the corporate and other non-governmental sectors to deal with specific issues such as banking, insurance, construction, media and pensions, and are common in South Africa, Australia, Canada, United States and other Western European countries. Public sector Ombudsmen on the other hand are established by the Constitution or other laws to promote administrative justice in public 10 Hatchard, The Institution of the Ombudsman in Africa Revisited’ 40(4) International

and Comparative Law Quarterly 93910

administration. All the country specific Ombudsmen in Africa fall in this category.

In relation to parliamentary categorization, Parliamentary Ombudsmen are created by Parliament to investigate administrative injustices by the Executive and report to Parliament for remedial action. Moreover, Parliamentary Ombudsman relies on Parliament for the matters it investigates and cannot investigate Parliament. Such Ombudsmen are deemed as officers of the legislative branch of government. Two examples of Parliamentary Ombudsman are the Parliamentary Commissioner for Administration in the United Kingdom and mediateur in France who are creatures of Parliament and can only investigate complaints upon referral by Members of Parliament. Further, they cannot investigate Parliament. Non-Parliamentary Ombudsmen, however, are not creatures within Parliament, can act on their own motion, can investigate Parliament and take remedial action without referral to Parliament. In other words, they are not part of Parliament, and do not rely on it for their existence and operations. However, they report to Parliament on their activities for accountability purposes. The majority of Ombudsmen in Africa fall in this category. In Kenya and South Africa, for instance, the Ombudsmen are created by the Constitution, can act on their own motion, can investigate Parliament and take remedial action on the matters that they handle.

Regarding fused and non-fused categorization, the consideration is based on the performance of one function or multiple functions. In a fused system, the Ombudsman performs more than one function, which may include a combination of administrative justice with anti-corruption, human rights protection or environmental protection. The Ombudsmen in Uganda, Ghana, Rwanda, Namibia, South Africa and Tanzania are in this category. Non-fused Ombudsmen primarily perform the duty of promoting administrative justice albeit with necessary modifications in certain cases. The Ombudsmen of Kenya, Nigeria, Zambia, Malawi and Mozambique fall in this category. It is, however, worth to note that even in non-fused systems, the Ombudsman would indirectly handle issues of corruption and human rights, given the broad nature of maladministration.

Regarding single versus collegial membership, the categorization is based on the structure of the Ombudsman, whether it is led by an individual assisted by deputies, or is modeled in a collegiate manner as a commission. The

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single membership is characterized by an Ombudsman at the apex with or without a deputy or deputies while the collegiate model has the chairperson and other members.

Besides the above classification, Ayeni has identified five types of Ombudsmen in Africa:11

i) Single member Ombudsmen with no deputy – This is modeled along the structure of the French Mediateur and is mainly in Francophone and Lusophone countries in Africa, as well as Lesotho.

ii) Single Member plus a deputy such as Botswana and South Africaiii) Specialty offices which targets the private sector and businesses and is

common in Anglophone countries such as South Africaiv) Dispersed collegial style such as Nigeriav) Fused collegial type with single or multiple functions such as Ghana,

Tanzania, the Gambia and Zambia.

V. THE OMBUDSMAN AND GOVERNANCE IN AFRICA

A. PLACEMENT OF THE OMBUDSMAN IN THE GOVERNANCE STRUCTURE

One of the unsettled debates is the placement of independent oversight bodies in a country’s governance structure. Three schools of thoughts have emerged. The first school of thought opines that such bodies are part of the Executive while the second school argues that they are institutions of the state outside government. The third school of thought, however, argues that they form the ‘fourth’ arm of government. This debate is mainly predominant in countries with ‘modern’ and ‘progressive’ constitutions that provide for such oversight bodies. In South Africa, for instance, the debate has been along the first two schools of thought. The first school of thought has been of the viewpoint that there are only three branches of government, and the

11 V. Ayeni, ‘The African Ombudsman – Framework, Jurisdiction and Operations,’ A Paper presented during the inaugural Regional Colloquium of African Ombudsmen on the theme ‘Repositioning the Ombudsman: Challenges and Prospects for African Ombudsman Institutions, 19 – 21 September 2013, Nairobi - Kenya.

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State Institutions Supporting Constitutional Democracy, as they are commonly known, fall within these branches.12

The second school of thought, however, opines that they are state institutions outside government; they are neither within any of the three branches of government nor form another branch of government. In this category is Murray (2006) who asserts that:

Under the traditional framework of separation of powers, government is divided into three branches within which all government institutions fall. However, the Chapter 9 institutions are not legislative, judicial or executive – they are not a branch of government. And they do not exercise power in the same way as the executive, legislature or judiciary do. Although they all have some form of investigatory powers and certain administrative powers, they do not govern. (emphasis added).13

She goes further to state that:

The traditional checks and balances intended to control government and the use of power have… not always been effective. In particular, in parliamentary systems, the relationship between the executive and legislature often leaves the majority in parliament disinclined to exert control over the executive. Instead, it interprets its role as supporting the government. This problem is exacerbated in systems like that in South Africa in which one party dominates and under an electoral system in which accountability to citizens is easily perceived as less important than accountability to party structures. Institutions like Chapter 9s are intended to supplement the traditional methods of securing accountable government…But the checking role of the Chapter 9s is different from that that one branch of government exercises over another in a system of separation of powers with checks and balances.

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.

13 Murray, C. (2006). The Human Rights Commission et al: What is the Role of South Africa’s Chapter 9 Institutions? PER, 9(2), p. 126.

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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 power.’ Moreover, in terms of the specific mandates, some of these institutions perform functions that make it impossible to place them within any of the arms of government. For instance, the Ombudsman of Kenya has a quasi-judicial mandate to deal with maladministration,15 which can be taken to fall within the Judiciary; handles complaints from the public against public agencies (investigations), a traditional function of the Executive, Legislature and Judiciary; and participates in the review of legislation affecting public administration, a traditional role of the Legislature. The foregoing further finds support from McMillan who examines the situation in Australia by stating that:16

It is misleading to classify many of these agencies as Executive; both their independence and the watchdog role they play in government differentiate them from other agencies in the Executive branch. The alternative…is to re-think their classification by taking stock of the enormous change that has occurred in the framework of government.

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, Montesquieu’s theory was not static; it reflected the position of a small and uncomplicated government at the time. 14 SABC vs DA (393/2015)[2015] ZASCA 158 at para 25.15 Sections 8 and 26 of the Commission on Administrative Justice Act, 2011.16 John McMillan, ‘The Ombudsman and the Rule of Law,’ Address to the Commonwealth

Ombudsman, Canberra, 5-6 November 2004.17 Montesquieu, B. (1949). The pirit of the law. Thomas Niget with an Introduction by

Franz Neuman Hinton Press Trans. New York: Hatner. 14

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, partiality, failure to communicate, rudeness, unfairness, unreasonableness, arbitrariness, arrogance, inefficiency, violation of law or regulation, abuse of authority, discrimination, carelessness, improper motivation, irrelevant consideration, inadequate or obscure explanation, and all other acts that are frequently inflicted upon the governed by those who govern, intentionally or unintentionally.

It is worth noting that maladministration is closely related to corruption which denotes abuse of power for private gain or transgression of formal rules governing performance of duties. Maladministration broadly encompasses corruption. In other words, corruption is a serious form of maladministration. This explains the reason for similarities of attributes such as position of power or authority; discretion; dishonesty, unfair behaviour or malfeasance; and private benefit. Acts of corruption such as misappropriation, nepotism, extortion, embezzlement, cronyism and bribery connote bad administration and, therefore, fall within the province of the Ombudsman.

Maladministration is also related to impunity which refers to the exemption from punishment or failure to bring the perpetrators to account for their actions. According to the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, impunity refers to ‘the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or 18 See Wheare K.C., Maladministration and its Remedies, (1973), Steven and Sons,

London 19 Bernard Frank, ‘The Ombudsman and Human Rights – Revisited’

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disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.’ Impunity is often the primary obstacle to upholding the rule of law, and manifests itself in different ways such as corruption, maladministration and violations of civil liberties.

By addressing maladministration and corruption, the Ombudsman fights impunity thereby contributing to good governance. The Ombudsman assures good governance by striking at the root of maladministration, corruption and human rights violations. It brings all the elements of good governance in administration, such as, transparency, objectivity, efficiency, accountability, economy and human touch thereby improving the delivery of public services. It ensures that public entities operate within the law and respect the rights of citizens.

In addition, redress of maladministration ensures social justice. The Ombudsman ensures social justice by ensuring fairness of the rules and their implementation. Moreover, the remedial action for systemic failures and public administration are key in ensuring social justice. Beyond routine roles, some Ombudsmen have been expressly mandated to address issues affecting minority and marginalized groups. The Ombudsman of Kenya, for instance, is mandated to secure the rights of minority and marginalized groups in the context of the public service. It is instructive to note that unlike the Ombudsmen in developed countries with strong welfare systems, the African Ombudsman does not primarily focus on social welfare programmes. This is because the situation in many African countries still relate to civil and political rights thereby making the Ombudsman to deal primarily with such issues.

Overall, the Ombudsman’s primary responsibility is to protect the public from the misuse of power by public offices and officers. Broadly, the responsibilities of the Ombudsman can be summarised as follows:

i) An instrument of protecting and promoting human rights.ii) A mechanism of democratic control over the bureaucracy.iii) An avenue for redress of grievances against administrative injustices.iv) An instrument for tackling bureau-pathologies.

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VI. OMBUDSMAN AND THE COURTS

As an institution in the system of administrative justice, the Ombudsman provides the public with a platform for redress of their grievances. Administrative justice refers to the the overall system by which decisions are made and action taken by public institutions and covers decision making by public institutions, procedures used by public institutions for making decisions, the law that regulates decision-making, and the systems (such as the various tribunals, ombudsmen and courts) that enable people to challenge these decisions. As stated by Ranjan, a sound system of administrative justice is an indicator of democratic governance and cornerstone of administrative reforms.20 This is because, it ensures a sound administrative framework, accountable and fair administrative action and procedures and complaints resolution bodies and procedures.21 The role of the Ombudsman in redress of grievances has been noted by a commentator thus:

In Latin America, the Ombudsman is often more effective than the courts in protecting human rights and also has an important complementary role in the resolution of conflicts. The Office of the Ombudsman is able to do this because of its particular characteristics, such as not being subject to formalities or legal restrictions for the handling of cases; being an organization that does not charge fee; and being independent of other state bodies.22

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 Ombudsman’s inquiry is much broader because it is concerned not just to

20 R. Ranjan, Concept and Role of the Ombudsman Institution in Asia in Improving and Maintaining Public Service Delivery.

21 Administrative Justice and Tribunals Council. (2010). Principles for administrative justice.22 Lorena G. V. The Institution of the Ombudsman: The Latin American Experience,’

(2003) Revista IIDH, Vol. 37, 220.23 Morgan, D. The Ombudsman and the Judge: Redressing Grievance and Holding to

Account, Address to Northern Ireland Ombudsman’s 40th Anniversary Event, 25th

November 2009.17

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 Ombudsman’s 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 jurisdiction of the courts in respect of its recommendations and decisions.26 It may also apply in situations where the Ombudsman fails to act. However, even in such cases, the court’s jurisdiction is limited to judicial review; the court cannot sit on appeal or re-open the matter. This position was enunciated by the Supreme Court of Ghana in a case for enforcement of the recommendations of the Commission on Human Rights and Administrative Justice thus:

It is not open to the Court before which the application was made to reopen the matter as it were, by calling evidence afresh. The court as stated is not sitting on appeal on the case either. It is when the court finds that in hearing the case, the Commission on Human Rights and Administrative Justice did not observe the rules of natural justice or exceeded jurisdiction of…that the application must fail.27

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

24 Amollo, O. Ombudsman, Courts and the Common Law. A presentation made at the Regional Colloquium of African Ombudsman Institutions held at the Kenya School of Monetary Studies, 18 – 20 September 2013.

25 Kucsko-Stadlmayer, G. Relations Between the Ombudsmen and the Courts: The Viewpoint of the Vanice Commission, Roundtable with the Russian Commissioners for Human Rights, 22 – 23 November 2011.

26 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.

27 Commission on Human Rights and Administrative Justice v Norver (2000-2002) 1 GLR 78.

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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 Ombudsman’s 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 Court made reference to the Australian Ombudsman notwithstanding the different contexts and legal frameworks. There was no reference to any jurisdiction in Africa with similar legal frameworks. The Court also mistakenly made reference to the binding powers of the court to determine the nature of the decisions of the Ombudsman. The Court failed to appreciate the transformative nature of the Constitution of Kenya and the nature of the jurisdiction of the Ombudsman of Kenya, particularly, the mandate to ‘take remedial action’ which does not exist in the classical context. An appeal has been lodged before the Court of Appeal of Kenya.

However, on a positive note, in the earlier cited case of SABC versus DA30

decided on 8th October 2015, the Supreme Court of South Africa aptly applied the law by holding that cases from developed countries such as Bradley could not be used in the context of South Africa since they reflected a jurisdiction different from the Public Protector’s. Accordingly, it held that the mandate of the Public Protector ‘to take remedial action’ meant that the Office could make binding decisions with legal consequences.

VII. COMPLIANCE WITH DECISIONS OF THE OMBUDSMAN28 Bradley & Others v Secretary for Work & Pensions [2007] EWHC 242 (Admin),

[2008]All ER (D) 98.29 Nairobi High Court Judicial Review Case No. 223 of 2014.30 No 14 Above

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One of the main challenges facing the ombudsman in Africa is the lack of sufficient powers to ensure implementation of their recommendations and decisions. This can be attributed to the non-appreciation of the jurisdiction and powers of the Ombudsman in Africa which are different from the classical Ombudsman. In the classical setting, the mandate of the Ombudsman does not go beyond recommendations. Moreover, such recommendations are implemented as a matter of course. In Australia for instance, McMillan documented a number of instances where the Defence Force of Australia had accepted the request by the Ombudsman to suspend impending executive action to discharge a member of the Defence Force until completion of an investigation; or the maritime authority accepting to defer the demolition of a structure that was the subject of a heritage dispute until a fuller investigation could be conducted. 31 This position still obtains in a number of jurisdictions in developed countries where there is respect for the rule of law and the report of the Ombudsman would naturally have the force of law though it is persuasive in nature.

In many African countries, however, implementation is not given; the threat or use of coercion is always preferred. Many African countries have not yet sufficiently developed the culture of moralsuation as the basis of action. Worse still, implementation through parliamentary reporting has been disappointing due to the nature of formation of Parliaments, politicization of the work of the Ombudsman and lack of sufficient scrutiny of the reports. A number of African countries are still faced with the challenge of impunity. In some cases where the Ombudsman makes decisions, there is always the question of whether such decisions have the status of court orders. Ironically, in some extreme cases, even court orders are ignored. In such jurisdictions, the Ombudsman should not just make recommendations or expect their decisions to be implemented based on moralsuation. They need ‘real’ teeth and powers of enforcement. In addition, the nature of work of the Ombudsman in Africa is such that they still have to largely deal with issues of civil and political rights, the redress of which would face resistance. In such cases, they require sufficient enforcement powers beyond merely making recommendations and moralsuation.

31 J. McMillan, ‘The Ombudsman and the Rule of Law’ Commonwealth Ombudsman, to the Public Law Weekend, Canberra, 5-6 November 2004.

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Accordingly, the new Ombudsman in Africa has been endowed with extra-ordinary jurisdiction and powers to enable them effectively address maladministration. In Rwanda, Namibia and Uganda, the Ombudsmen have coercive powers of prosecution that facilitate compliance. In Ghana, the recommendations of the Commission on Human Rights and Administrative Justice can be enforced thought the courts. Failure to implement the decisions would amount to contempt and attract penal action. In Kenya and South Africa, the Ombudsmen have the powers to address maladministration and ‘take remedial action.’ This mandate means that the decisions of the Ombudsmen are not mere recommendations; they are binding and have legal consequences as was recently elucidated by the Supreme Court of South Africa thus:

Our constitutional compact demands that remedial action taken by the Public Protector should not be ignored. State institutions are obliged to heed the principles of co-operative governance…any affected person or institution aggrieved by a finding, decision or action taken by the Public Protector might, in appropriate circumstances, challenge that by way of a review application. Absent of a review application, however, such person is not entitled to simply ignore the finding, decision or remedial action taken by the Public Protector. Moreover, an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the position that the outcome of that parallel process triumphs the findings, decision or remedial action taken by the Public Protector.32

VIII. BEST PRACTICES IN OMBUDSMANSHIP: THE CASE OF THE KENYAN OMBUDSMAN

A. ESTABLISHMENT AND MANDATE

The Ombudsman of Kenya, formally known as the Commission on Administrative Justice is established under Article 59(4) of the Constitution of the Republic of Kenya and the Commission on Administrative Justice Act, 2011 as part of the restructuring of the Kenya National Human Rights and Equality Commission.33 The mandate of the Commission is to enforce 32 No. 14 Above 33 The two other Commissions that were created by the restructuring are the Kenya

National Commission on Human Rights and the National Gender and Equality 21

administrative justice in the public sector by addressing maladministration through effective complaints handling and alternative dispute resolution. In addition, the Commission has a constitutional mandate to safeguard public interest by promoting constitutionalism, securing the observance of democratic values and principles, and protecting the sovereignty of the people. In particular, the mandate of the Commission covers the following: Maladministration Administrative injustice Leadership and integrity Advisory opinions, proposals and Recommendations on improvement of

public administration Training of public officers on effective methods of handling complaints

and good governance Building of complaints handling infrastructure in the public sector Promotion of alternative dispute resolution methods in public

administration Promotion of constitutionalism and human rights Protection of the rights of marginalized and minority groups

The Commission’s mandate covers all State and Public Offices and Officers, under both national and county governments. In sum, the Commission’s 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) Powers of the Commission

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

Commission. 22

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.

B. IMPLEMENTATION OF DECISIONS AND RECOMMENDATIONS OF THE OMBUDSMAN

The Commission, like other Ombudsmen in Africa, has been faced with the challenge of non-implementation of its decisions and recommendations. This challenge usually takes many forms, including defensiveness by the relevant agency, hostile response, inordinate delay to respond to issues raised and outright refusal to accept the results of the investigations or adjudication. It is not unusual to find a public body or officer challenging the mandate and powers of the Commission or sometimes politicising the findings and decisions. In other instances, they would say that the Commission is not a court of law. In order to overcome these challenges, the Commission has devised innovative ways of ensuring compliance with its recommendations and decisions, or compliance with the precepts of good governance. These initiatives have, by and large, produced positive results, although a lot still needs to be done to achieve maximum outcomes.

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i) Complaints Handling

Like other Ombudsmen, the Commission facilitates administrative justice through complaints handling and resolution. The Commission has devised various ways of ensuring co-operation and compliance with its recommendations and decisions in relation to complaints handling. The main mechanisms in this regard are:

Submission of Reports to Appropriate Agencies

Pursuant to section 42(1) of the Act, upon conclusion of an inquiry or investigation, the Commission issues a report to the state organ, public office or organisation to which it relates for implementation. Further, the report may be submitted to any interested party for purposes of implementation.34 In submitting the report and in line with section 42(3) of the Act, the Commission usually gives a timeline for submission of a response by the relevant agency on the steps taken to implement its recommendations. Through this process, a number of recommendations and decisions have been implemented by public agencies without further action from the Commission. This has been bolstered by Commission’s standing in public administration in Kenya which has come to be appreciated by public agencies.

Notice to Show Cause

This is issued pursuant to sections 2 and 26 of the Act and Regulations 17 and 18 of the Commission on Administrative Justice Regulations, 2013 in cases where the respondent public agency or officer has failed to respond to an inquiry or investigation by the Commission and 28 days have passed since the initial communication. It may also be issued where they have failed to provide information on the action taken regarding a report of the Commission. The Notice has proved to be very effective, having a compliance rate of approximately 98 percent. Part of the Notice reads as follows:

NOW TAKE NOTICE that by means hereof, you are hereby required to show cause within Fourteen (14) Days from the date hereof, why your name should not be entered in the Register of Malfeasant Public Officers as an

34 Section 41(a) of the Act.24

unresponsive Public Officer and unfit to serve in the Public Service, and for the Commission to further cite you as such in its Statutory Report, in accordance with Regulation 18(c) and (d) of the Commission on Administrative Justice Regulations

DO FURTHER TAKE NOTICE that the aforesaid is separate and independent of such further action as the Commission may take on the substantive complaint, including issuance of Summons with attendant consequences, and compulsion to attend and produce documents/give information or adjudicate as may be necessary.

Summons

Summons is issued where a public agency or officer has failed to respond to the Notice to Show Cause or co-operate with the Commission during investigations. This power is similar to that of the Court, disobedience of which would amount to contempt and attract penal sanctions.

ii) Performance Contracting

The Commission is mandated to set up and strengthen complaints handling capacity in the public sector in Kenya. To this end, the Commission plays a critical role in developing the capacity of public institutions and officers to handle complaints. The indicator requires all public institutions to promptly 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

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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) Public Interest Litigation

As a State Organ, the Commission is empowered to bring any action before the court, whether Superior Courts or Subordinate Courts35 on any matter relating to administrative justice or constitutionalism. Such action should relate to the following:36

matters of broad public interest matters raising substantial policy implications matters affecting public administration matters relating to administrative justice matters concerning leadership and integrity

Pursuant to this, the Commission has participated in public interest litigation by initiating or joining on-going cases, either as a party, amicus curiae or 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 Kenya’s 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 35 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.

36 Regulation 34(2) of the Commission on Administrative Justice Regulations, 201337 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

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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

The Commission is required under Article 254 of the Constitution and 53 of the Act to report to Parliament and the President annually on the progress of its work. It is also required to report bi-annually on the complaints investigated and the remedial action taken.38 Further, the Commission is required to issue special reports in appropriate cases, and publish periodic reports on the state of administrative justice in Kenya. Under Section 42(4) of the Act, the Commission is required to submit a report to the National Assembly in cases of failure by a public agency to implement its recommendations. The reporting mechanism exposes public institutions and offices who fail to comply with the decisions or recommendations of the Commission. The reporting mechanism is intended to enable Parliament and the President to determine appropriate action in cases of non-compliance with the recommendations and decisions.

v) Citation Register

Citation Register is one of the innovative mechanisms developed by the Commission to ensure compliance and co-operation by public agencies and officers. Under this mechanism, the Commission has developed a Register, akin to a ‘Black Book’ where names of unresponsive and malfeasant public agencies and officers are entered. The Commission has developed parameters for determining unresponsiveness and malfeasance which include failure to respond to inquiries by the Commission or implement any determination or recommendation of the Commission. Once the names are entered in the Register, for public institutions, they may be sanctioned by the Commission under the performance contracting system, while for public officers; they may face the possibility of being declared unfit to hold public 38 Article 59(2)(j) of the Constitution and Section 8(c) of the Act

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office. The names in the Register are also published in the Annual Report as part of naming and shaming. The mechanism has been integrated in the Notice to Show Cause discussed above and has led to attainment of satisfactory outcomes.

vi) Huduma Ombudsman Awards

The Huduma Ombudsman Awards is a scheme where outstanding and exemplary public agencies and officers are recognised and awarded. One of the parameters for determining the winners is responsiveness in relation to inquiries and compliance with the recommendations and decisions of the Commission. The Scheme has the effect of positively influencing actions by public agencies and officers thereby promoting good administration. The Commission has so far held the awards twice in 2014 and 2015 which were presided over by the President. The winners of the awards have been promoted for the exemplary work.

vii) Inspections (Spot Checks)

The Commission conducts regular and impromptu inspections (spot checks) on selected public institutions to ascertain the veracity of the reports submitted under performance contracting and assess the standards of service delivery. Further, the spot checks seek to establish whether public institutions maintain complaints register, accessible complaints offices or desks, feedback mechanisms and observe adherence to the service charter standards.

viii) Use of Coercive Powers

Besides issuing summons and Notice to Show Cause, the Commission is endowed with coercive powers which have enhanced compliance with its recommendations and decisions. These include investigative powers such as warrants of arrests for breach of summons or order of the Commission,39

searches and inspections40 and production of relevant information41 among others. In addition, the power to adjudicate on matters of administrative injustice has strengthened the position of the Commission in ensuring 39 Article 252(3)(a) of the Constitution, Section 28(2)(a) of the Act and Regulation 19(g)

of CAJ Regulations 40 Section 26(e)) of the Act and Regulation (19(h) of CAJ Regulations41 Section 26(d) of the Act and Regulation 19(b) of CAJ Regulations

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compliance with its decisions.42 Further, the power to recommend appropriate remedial action, including penal action, 43 and compensation44

has bolstered compliance with the recommendations and decisions of the Commission.

IX. 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:

It is our responsibility as Ombudsmen to make our institutions relevant to the realities of our time, to be responsive to the situation, which we encounter…I do not believe we can be relevant and responsive if we have our offices as they were a decade ago, stagnant and unrenewed, given the rapid changes which are taking place around us at every turn.45

Third, the choice of the model of Ombudsman, whether fused or unfused, is dependent on the country specific circumstances. Regardless of the model, the Ombudsman should be enabled to effectively discharge its duties. Fourth, the African Ombudsman must actively be involved in the fight against maladministration, corruption and impunity. The tools, techniques and competencies of the Ombudsman make it an important ally in fight against these social vices. Even in countries with separate anti-corruption

42 Section 26(c) of the Act and Regulation 22(4)(a) of CAJ Regulations 43 Section 52 of the Act and Regulation 18(b) of CAJ Regulations44 Section 8(g) of the Act and Regulation 21(b) of CAJ Regulations45 Enhancing Human Rights and Strengthening Government Accountability: Re-

designing 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.

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and administrative justice agencies such as Kenya and Nigeria, the Ombudsman must actively fight corruption. This becomes more relevant in the context of Africa, considering the prevalence of maladministration, corruption and impunity in many countries. In any event, the more the anti-corruption oversight bodies, the merrier since it raises objectivity and the possibility of compliance with their findings.

Fifth, there is need for an appreciation of the complementary relationship between the Ombudsman and courts in the administrative justice system. The courts must appreciate that the Ombudsman is part of the modern institutional framework for dispensation of justice. They must appreciate the Ombudsman as an alternative dispute settlement platform that lifts pressure from the courts since most of the complaints handled by the Ombudsman would usually end up in Court. In Kenya, for instance, empirical data reveals that in the 2012/2013 financial year, the total number of cases handled by the Judiciary (new and pending) stood at 847,853 out of which 190,093 were resolved leaving 657,760 pending.46 In the same period, the Ombudsman handled 18,257 complaints most of which would have added the caseload for the courts had they not been handled by the Ombudsman. Sixth, the Ombudsmen all over the world need to enhance exchange programmes so as to share different experiences and challenges. This is important since it is a source of inspiration, support and benchmarking on the best practices. Partnerships and linkages also need to be strengthened so as to make the Ombudsman more visible not just at a national level but beyond.

* 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.

46 The Judiciary of the Republic of Kenya. (2014). State of the Judiciary and the Administration of Justice, Annual Report, 2012-2013, Nairobi.

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