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Republic of Zambia
OFFICE OF THE PUBLIC PROTECTOR
A Paper Presented during a facilitated discussion (AORC- AOMA) by H.E Mrs.
Caroline C.Z Sokoni - Public Protector of the Republic of Zambia
Topic: Why is there need to strengthen the mandate of the ombudsman
Date: 21st September, 2021.
Duration: 15 minutes Maximum
In celebration of Ombudsman Month which is normally held in October each
year and to raise awareness of the Ombudsman institution, AORC hosted this
facilitated discussion dealing with effective tools to strengthen the mandate
of the Ombudsman institution.
2
WHY IS THERE NEED TO STRENGTHEN THE MANDATE OF THE OMBUDSMAN
The office of the Ombudsman is a unique institution in that it investigates the very
institution that facilitates the creation of both its legislative and institutional framework,
that is, the Executive arm of government. The office of the Ombudsman is a creature borne
out of the political will of the government. Political will refers to the active commitment by
the government of the day, to pursue and seek to achieve through stake holder
consultation, a particular policy objective, which process subsequently legitimises the
implementation of the policy with the passing into law of the supporting legislative,
institutional and financial framework. There can be said to be lack of political will if there is a
lack of commitment at any stage of the formulation, development and implementation of
the policy objective.
The nature of an Ombudsman’s work is to investigate maladministration. Maladministration
is the root cause of corruption. It is often referred to as petty corruption, yet often the
impact of both corruption and maladministration have deep reverberations in the public
service delivery system. It is no small injury when a member of the public is unfairly
hindered from gaining access to the services that he deserves, as of right even though the
financial impact may not be felt on a macroeconomic level. Maladministration may be
termed petty corruption simply because of some of the activities, such as discourtesy, to
give just one example, have negligible effects on the government’s resources. However in
terms of the law, maladministration is as much an offence as corruption and more so
because it creates obstacles to equal access of services and benefits of these services to all
One of the classic definitions of maladministration is that it refers to administrative action or
inaction based on or influenced by improper considerations or conduct.1 The implications of
placing an institution in the precarious position of investigating an administration to which it
is answerable raised a conundrum for the founding fathers of Ombudsmanship. The
problem begged for an airtight solution, in order to consolidate the independence and
integrity of the ombudsman institution. In the classical model developed in Sweden, the
ombudsman was made answerable to Parliament in order to ensure that the governed
could freely make the public service officials answerable to them. In other words, making
the Ombudsman answerable to parliament where the representatives of the people
congregate in order to make laws, ensured that public service officials could not use
government bureaucracy or officialdom in order to negate the investigations of the
Ombudsman. Thus it came to pass that the Ombudsman is appointed by the legislature, is
answerable to the legislature and in the event there is need to prematurely terminate an
Ombud’s term of office, only the legislature may do so.
1 K.C Wheare; Maladministration and its Remedies; Stevens Publications,
3
The doctrine of separation of powers helped to ease the Ombudsman into a much more
preferable position. The conflict of interest arising from investigating the same body which
can appoint and dismiss the Ombudsman was wisely resolved by placing the Ombudsman
right at the centre of the doctrine of the separation of powers. This is evidenced by the fact
that the Legislature appoints or in some instances, the legislature recruits the Ombudsman
through a competitive process and then recommends to the Head of state who is the head
of the Executive, to appoint the Ombudsman. The Ombudsman is made accountable to the
legislature and this provides the required checks and balances in order to further secure the
independence of the office of the Ombudsman. In other systems the President appoints the
Ombudsman, subject to ratification by the Legislature. Termination of employment is
carried out in a procedure similar to removal from office of judges. The job of the judiciary
in the triangular arrangement of the separation of powers in strengthening the mandate of
the Ombudsman is to provide the conditions of service which are drawn from the judiciary.
The need to further strengthen the mandate of the Ombudsman in the area of terms and
conditions of service became glaringly clear as it was not possible for a low level ranking
ombudsman to investigate high ranking government officials and require them to comply
with the recommendations of the Ombudsman, when an inquiry regarding
maladministration lies against them. The position of the Ombudsman has therefore been
equated to that of the high ranking judicial office of a Judge, with all the accompanying
powers of the office, except the power to make binding decisions. The position has also
been vested with the conditions of service and remuneration of a Judge. However, it is the
lack of power to make binding decisions which has attracted wide debate as to whether the
Ombudsman must be vested with equivalent enforcement powers as those of the courts of
law, when the final investigative report is submitted for implementation. Once
recommendations for the remedial actions required to be taken by errant public service
officials or an entity whose public service delivery falls short of the required standards, in a
classical ombudsman system, the ultimate enforcement mechanism open to the
Ombudsman is to submit the report to the Legislature’s committee system. The question
often asked of the Ombudsman is as to whether stopping at the point of making
recommendations when finalising the investigative report is sufficient for enforcement
purposes.
In Zambia, the mandate of the Public Protector was strengthened by making the
recommendations issued in the final reports binding. The provisions were couched very
clearly. There was no ambiguity at all. The Constitution of Zambia under Article244 (5),
states as follows:-
“The Public Protector has the same powers as those of the High Court in –
a) Enforcing the attendance of witnesses and examining them on oath
b) Examining witnesses outside Zambia
c) Compelling the production of document
4
d) Enforcing decisions issued by the Public Protector
e) Citing a person or an authority for contempt for failure to carry out a decision
f) A person summoned to give evidence or to produce a document before the Public
Protector is entitled in respect of that evidence or the production of the document,
to the same privileges and protection as those that a person would be entitled to
before a court.”
Furthermore the Constitution of Zambia states that one must be qualified to be a judge in
order to eligible to be appointed to the office of Public Protector and it further states that
removal of the public protector from office shall be the same as removal of a Judge from
office. All these measures were put in place in order to strengthen the mandate of the office
of the Public Protector.
However, In the case of The Public Protector for the Republic of Zambia and Indeni
Petroleum Refinery;2 the Public Protector appealed on a preliminary matter to the
Constitutional court on the ground that the reports of the Public Protector were not
amenable to judicial review since the office of the Public Protector enjoyed equivalent
powers to the High Court, pursuant to the constitutional provisions. The Constitutional
Court on page J15 of their judgment however held inter alia, that the provisions or the
Constitution provided for a restricted jurisdiction for the Public Protector which was specific
and restricted to investigations of allegations of maladministration by a state institution.
The Constitutional Court observed that in contrast to the jurisdiction of the Public Protector,
the jurisdiction of the High Court was unlimited and original for civil and criminal matters,
appellate and supervisory jurisdiction and jurisdiction to review decisions, in accordance to
the law.
The Zambian Constitutional Court further relied on the South African authority of “The
Minister of Home Affairs v The Public Protector”, 3 where the Supreme Court of South
Africa stated regarding the Public Protector of South Africa that :-
“The Public Protector is not a court, does not exercise judicial power and cannot be
equated with a court. Her role is completely different to that of a court and the
jurisdictional arrangements for the courts are entirely irrelevant to a determination of the
Public Protector’s jurisdiction. It is necessary to look to section 182 of the Constitution and
the Public Protector Act to ascertain the bounds of the Public Protector’s jurisdiction”.
The Constitutional Court of Zambia then went on to rule similarly in the case of Zambian
case. They stated inter alia, that it is evident that the Public Protector is not a court as
Article 120 of the Constitution clearly states the composition of the Judiciary and does not
include the office of the Public Protector.
2 PUBLIC PROTECTOR FOR THE REPUBLIC OF ZAMBIA V INDENI PETROLEUM REFINERY COMPANY (484/2018/CCZ/R001), (CONSTITUTIONAL JURISDICTION) SELECTED JUDGEMENT NO. 16 OF 2019 3 MINISTER OF HOME AFFAIRS V PUBLIC PROTECTOR (308/2017) 2018 ZASCA 15
5
They further stated that the Constitution does not contain any express provision which
equates the Public Protector to the High Court. The holding of the Court is of course in
direct contrast to the provisions of the Constitution. The Reports of the Public Protector
were after the Constitutional Court’s ruling, made amenable to Judicial Review. The
Constitutional Court therefore interfered with the provisions of the Constitution by
interpreting them strictly in order to curb the strengthened mandate of the Public Protector
which equated the powers of the office to that of the High Court under the Constitution.
Thus in the judgement delivered for the case of Indeni Petroleum Refinery Company and the
Public Protector4, which was an application, for judicial review filed by Indeni Petroleum
Refinery Company, against the ruling of the Public Protector to reinstate two former
employees of the Applicant institution, the High Court quashed the decision of the Public
Protector for illegality, and the High Court observed as follows on page J28 of the
judgement:-
“It is therefore important that public bodies ought to always confine the exercise of their
powers within the confines and parameters of the law and guard against being used for
purposes other than that for which they were created”.
This ruling was in direct contrast to the provisions of the Zambian Constitution as the Public
Protector, taking the literal rule interpretation of the Constitution, had not acted ultra vires
its powers as was stated in the Court’s judgement. Indeed the Constitution clearly states
that the Public Protector shall hear an appeal by a person relating to an action or decision
taken or omitted to be taken in respect of that person and the Constitution further states
that he Public Protector may make a decision on an action to be taken against a public
officer or Constitutional office holder, which decision shall be implemented by an
appropriate authority. However the High Court reasoned that once the office transitioned
from the executive ombudsman system of the Investigator General to the parliamentary
ombudsman system of the Public Protector, the Public Protector continued to investigate
matters carried over from the Investigator General era, but used the powers of the office of
the Public Protector to finalise them. The court insisted that this was wrong and that the
office should have finalised the case under the defunct Commission for Investigations Act.
The court also objected to the matter being completed after six years of investigations.
It is important to note that when the office of the Public Protector Zambia was still
operating as the office of the Investigator General, the office of the State President had
continually declined to review the Indeni Report, which case was the subject of the judicial
review proceedings. Since the office was an Executive Ombudsman, the enforcement
mechanism was a final endorsement of the Investigator General’s Report, from the State
President, whether he was in support of the Investigator’s Report or not.
4 INDENI PETROLEUM REFINERY V THE PUBLIC PROTECTOR FOR THE REPUBLIC OF ZAMBIA 2017/HN/407
6
Thus when the office transitioned to that of the Public Protector, the Public Protector used
the enforcement mechanisms available under the Public Protector Act, as the Commission
for Investigations Act had been repealed. As the Executive had not supported the
Investigator General in reviewing the final Indeni Report, the report was not acted upon
until the powers of the office of the Ombudsman Zambia were enhanced. Thus, when the
office transitioned from an Executive to a Parliamentary reporting system, the Public
Protector Zambia issued a final report, which had a binding effect on the respondents
pursuant to the enhanced powers under the new Constitution. The matter was taken to
court by the Respondents, and the resultant judgement watered down the powers of the
Office of the Public Protector Zambia (OPPZ). The institution now must budget for litigation
costs as a matter of priority.
Similarly in the South African case of The Economic Freedom Fighters v The Speaker of the
National Assembly5, the mandate of the Public Protector South Africa, (PPSA), was
strengthened when the Constitutional Court of South Africa delivered its judgement, which
converted the recommendations of the PPSA, into binding decisions. The judgement
concerned the powers of the PPSA, to take appropriate remedial action. The power to
recommend appropriate remedial action is part of the Constitutional powers of the Public
Protector of South Africa. The Speaker contended that the PPSA’s power to take remedial
action merely amounted to recommendations and thus the remedial action was not binding
and the opposition in Parliament who had taken the Speaker to Court over the matter
insisted that the Public Protector South Africa’s remedial action powers were binding on the
concerned parties. The Constitutional Court disagreed with the Speaker of Parliament, and
ruled that the Public Protector’s remedial action ruling in an investigative report were
binding. Consequently, because the Public Protector’s Report regarded corrupt practices by
the office of the State President, the Constitutional Court read the remedial action issuing
powers of the Public Protector much more broadly and thus made the recommendation for
remedial action binding. Before this judgement, the remedial recommendation of the Public
Protector had always been taken as a mere recommendation, which protected the Public
Protector from litigation from government departments which were not happy with findings
of the Public Protector.
As a consequence of the Constitutional Court of South Africa’s eagerness to buttress the
enforcement powers of the Public Protector in the Nkandla Judgement, the Public
Protector’s office fell afoul of the system. The PPSA did not deliver an acceptable ruling in
view of some of the stakeholders. This was in its later report regarding the Reserve Bank of
South Africa.
5 Economic Freedom Fighters and Democratic Alliance v the Speaker of the National Assembly and ORS (2016) ZACC 11
7
The South African Constitutional Court in a majority judgement delivered on the 22nd of July
2019, upheld the North Gauteng’s High Court Order issued in February 2018, for the Public
Protector to be held liable for 15% of the legal fees in the case of the Public Protector v the
Reserve Bank of South Africa6, for procedural errors which would have been easily corrected
had the PPSA’S appropriate remedial action conclusions been left at the level of
recommendations and not binding decisions.
The facts of the case are that between 1986 and 1995, the Reserve Bank of South Africa lent
colossal amounts of money to a company known as Bankorp. Absa acquired Bankorp in April
of 1992. In 1997 the South African government began to pursue the repayment of Bankorp’s
still unpaid loan from the Reserve Bank of South Africa. An audit of the loan transaction had
elicited the information that fraud and maladministration characterised the financial
assistance given by the Reserve Bank to Bankorp and by extension to Absa who had
purchased Bankorp. After various further internal inquiries, the matter was referred to the
office of the Public Protector. After seven years of investigations, a report was issued by the
Public Protector. The report was issued after the Nkandla judgement had directed and thus
converted the remedial action recommendations into binding decisions of the Public
Protector. Before the report was finalised, the Public Protector consulted with the
Complainants, who were the government, however she did not consult with the respondent
institutions, being Absa and the Reserve Bank of South Africa. In his dissenting judgement,
Chief Justice Mogoeng summarised Absa and the Reserve Bank’s objection to the Public
Protector not having consulted with them as well, as follows:-
“The Reserve Bank contended that the Public Protector failed to conduct a fair and
unbiased investigation. This it argues constitutes a reasonable apprehension of bias. That
she met with the Presidency and the State Security Agency just before publishing the final
report, but did not afford the Banks the same opportunity for engagement, is said to
support the contention that she was reasonably apprehended to be biased. In particular,
because she brought about substantial changes to the provisional remedial action in her
final report, as a result of the Presidency input. The criticism is that she should not only
have been upfront about her meetings with the Presidency, but she should also have
solicited the views of the Banks again at that stage”.
The Reserve Bank of South Africa also objected to the Public Protector’s final remedial
action for the Chairperson of the Portfolio committee on Justice and Correctional Services to
initiate a process that would result in the amendment of the South African Constitution. On
the basis of the remedial action finding, the Reserve Bank of South Africa asked for a
punitive costs order against the Public Protector in her personal capacity and also asked for
a declaration that she abused her office in her investigations.
6 PUBLIC PROTECTOR V SOUTH AFRICAN RESERVE BANK (2019) ZACC 29, CONSTITUTIONAL COURT OF SOUTH AFRICA: CASE CCT 107/18
8
Although it is not being stated openly, the most concerning part of the Public Protector’s
Report was because of, and since the Nkandla case, the remedial action proposals contained
in the Public Protector’s report had now become binding and the Reserve Bank and the
legislature would have been compelled to comply with the remedial action resolution of the
PPSA.
In this case, the Public Protector advanced five grounds of appeal, two of which were that
the Public Protector had constitutional immunity from being personally penalized for
actions undertaken during the course of her official duty and secondly that the personal
costs award interfered with the independence of the Public Protector and would inhibit her
from exercising her powers without fear, favour or prejudice. The Constitutional Court still
upheld the High Court’s ruling that the Public Protector pay 15% of the Reserve Bank’s costs
in her personal capacity. Judge Mogoeng observed:-
“After all, courts exist not to rush or destroy, but to teach or guide, caution or deter, build
and punish and constructively. And that ought to be the purpose of the law in our
constitutional dispensation, considering our injustice-riddled past. The law ought not to
be applied mechanically, regardless of whether the outcome yields justice or inequity.”
The Judgements delivered in Zambia and South Africa concerning the office of the
Ombudsman have the potential to not only undermine the independence of the office of
Ombudsman, but to equally erode instead of strengthen the mandate of holders of the
Office of Ombudsman. The principle which requires that an Ombudsman only make
recommendations was meant to protect the Ombudsman from being victimized for reports
issued pursuant to the finalization of an investigation. Had the powers of Office of the Public
Protector Zambia and Public Protector South Africa remained at the level of
recommendations, the litigation under discussion might have never occurred.
The surest way of strengthening the mandate of the institution of the Ombudsman is for the
Ombudsman to make recommendations instead of issuing binding decisions. From the two
examples cited in this paper, it is evident issuing of binding decisions makes the
Ombudsman amenable to review of its decisions by the courts of law. The courts also seem
to feel threatened by the judicial powers of the Ombudsman and there is always a
temptation by any one of the three arms of government, to trim down the powers of the
Ombudsman. It is thus an exercise in futility for the decisions of the Ombudsman to be
subjected to judicial review. It is as good as telling complainants to the office of the
Ombudsman to proceed directly to the courts of Law. Furthermore it becomes expensive for
the Ombudsman to always be in court litigating. Thus the classical Ombudsman model of
the Ombudsman submitting reports to Parliament for enforcement purposes is much the
preferred method of finalising contentious matters for the Ombudsman.
9
The marriage of issuing recommendations with enforcement from the legislature is however
not without its down sides. The legislature also needs to be brought up to date with how
important the Parliamentary Committee system is for the Ombudsman as an enforcement
mechanism for the recommendations of the Ombudsman. The Irish Ombudsman submitted
a case for Parliamentary review. In her letter to the Irish Parliament the Ombudsman stated
as follows:-
“The office of the Ombudsman relies on the authority which comes from its
independence, impartiality and competence to gain fair play for people who have
been wronged by public bodies. As Ombudsman I do not make binding decisions.
The Department is free in law to reject my recommendations. My only recourse,
when I consider that a public body’s response to a recommendation is
unsatisfactory, is to make a special report to each house of the Oireachtas under the
Ombudsman Act 1980. This is such a report.”7
In a paper entitled, Relations between Ombudsmen and Parliament, former Irish
Ombudsman Emily O’Reilly discussed the Lost at Sea Case8 report, which she had submitted
to Parliament for enforcement of payment of compensation of €245,000.00, to be paid to
the widow of a fisherman who drowned at sea in 1981 when his trawler sank with the loss
of four other lives, including that of his sixteen year old son. The Ombudsman’s
recommendations for redress for the complainant were made under a statutory
compensation scheme which did not cover the claim; however the Ombudsman under her
mandate to provide relief, requested for an exception to the general rule created by the
statute, The Department of Agriculture and Fisheries rejected the Ombudsman’s
recommendation to pay compensation. The Ombudsman then submitted a Special Report
to Parliament seeking enforcement of her decision. The report also contained information
regarding the role played by the Minister. When the matter came before Parliament, the
government of the day had a majority in Parliament and the parliamentary whip system was
used in order to over-rule the recommendations for compensation contained in the
Ombudsman’s report. This defeated the whole purpose of sending the matter for
parliamentary review as the government used the parliamentary whip system in order to
have the report thrown out.
7 https://www.ombudsman.ie>publications>lost-at-sea 8 https://www.ombudsman.ie/en/News/Speeches-Articles/2011/Relations-between-Ombudsmen-and-Parliaments.html
10
Emily O’Reilly wrote:-
“The chain of independence envisaged by the Oireachtas, (Legislature of Ireland),
when it enacted the Ombudsman Act has been broken in this case and that can only
be to the detriment of members of the public who have received unfair treatment at
the hands of the public bodies and who rely on the office of the Ombudsman to
provides a remedy for their complaint in a fair, effective and independent manner”.9
In support of his predecessor’s submission, the former President of the International
Ombudsman Institute and successor to Emily O’Reilly as Ombudsman of Ireland, Peter
Tyndall submitted as follows in his concluding statement regarding the issue of the
relationship between Parliament and the Ombudsman :-
“An Ombudsman should not be above scrutiny by Parliament but any such
process should not be tainted by narrow political considerations. If an Ombudsman
makes recommendations which are objective, supported by the evidence of the case
and the law and he or she recommends redress which is appropriated and
proportionate then Parliament should bring its authority to bear on behalf of the
complainant in order to overcome any resistance to full implementation of the
Ombudsman’s recommendations”.10
There are a number of international instrument that give guidance on how the mandate of
the ombudsman can be strengthened. However largely due to the lack of a uniform and
mandatory standard setting international instrument regarding the office of the
Ombudsman, governments continue to grapple with the problem of how to define the role
of the Ombudsman in relation to the three arms of government. The need to solve this
problem is the only way the mandate of the Ombudsman can be strengthened. Let
international instruments be made to come to bear upon governments, and let them all sign
up to international agreements to recognise and give support to the singular mandate of the
office of the Ombudsman.
UN General Assembly Resolution 65/207 of 21st December 2010 encourages the
Ombudsman institutions to operate in accordance with the Paris principles and other
relevant international instruments in order to strengthen their independence and
autonomy. Each and every UN General Assembly Resolution stresses the importance of the
autonomy and independence of the Ombudsman in order to enable them to consider all
issues related to the field or their competences.
UN General Assembly Resolution 69/168 of 18th December 2014 encourages member states
to consider the creation or the strengthening of independent and autonomous Ombudsman
institutions. 9 ibid 10 Speech by Ombudsman Peter Tyndall at the 3rd International Symposium on Ombudsman Institutions, Ankara, Turkey on 17th September 2015
11
The United Nations General Assembly General Assembly also requested member states to
endow Ombudsman institutions with an adequate constitutional and legislative framework
in order to ensure the efficient and independent exercise of their mandate and to
strengthen the legitimacy and credibility of the Ombudsman institution as a mechanism for
the promotion and protection of human rights.
Under resolution 68/171 the General Assembly recognised that National Human Rights
Institutions, (NHRIs), among which includes Ombudsman Institutions, and their respective
members of staff, should not face any form of reprisal or intimidation, including political
pressure, physical intimidation, harassment or unjustifiable budgetary limitations, as a result
of activities undertaken in accordance with their respective mandate. Resolution 68/171
also stresses the importance of the financial and administrative independence and stability
of NHRIs. Autonomy and independence of national human rights institutions is a recurring
theme. Thus the resolution especially laid emphasis on the importance of the autonomy and
independence of Ombudsman institutions.
Similarly, the International Ombudsman Institute By-Laws have set a high standard for
countries around the world to abide by when establishing Ombudsman institutions. The IOI
have stressed the underpinning principle for an Ombudsman institution to function
effectively is independence. In Article 2(2) (f), it is clearly stated that the office of the
Ombudsman should have the power to make recommendations in order to remedy or
prevent maladministration, abuse of office, violation of rights, corruption or any injustice
caused by a public authority. Under Article 2(2) (d) the IOI reiterates that the office of the
Ombudsman should operate as independently as possible without anything or anyone to
compromise its independence.
The African Ombudsman and Mediators Association also laid down standards for the
establishment of an Ombudsman Office. These are known as the OR Tambo Declaration on
the Minimum Standards for an Effective Ombudsman Institution. The standards require that
the independence and autonomy of the Ombudsman institution must guaranteed by the
Constitution, and that the Ombudsman shall be immune from being sued or prosecuted in
his or her own capacity. Furthermore, the OR Tambo Declaration states that the minimum
rank and remuneration level of an Ombudsman should be commensurate with the
responsibility of the office, with the minimum rank at the level of a Judge of the High Court.
It further stresses on the need for the Ombudsman to operate as independently as possible.
It will be necessary for the OR Tambo Declaration to be adopted formally by the African
Union so that governments in Africa become conscious and committed stakeholders in the
institution of the Ombudsman. This may avoid the situation arising where the Ombudsman
is treated as a pawn by any of the three branches of government in order for a particular
political objective to be obtained
12
In 2017, the latest standards intended to strengthen or the protection and strengthening of
mandate were adopted. These are known as the Principles on the Protection and Promotion
of the Ombudsman Institution. They are also referred to as the Venice Principles because
they were adopted by the European Commission for Democracy through Law, which is also
referred to as the Venice Commission. Concerning an Ombudsman’s mandate, the Venice
principles cover prevention and correction of maladministration, and the protection and
promotion of human rights and fundamental freedoms. They also state that following an
investigation, the Ombudsman shall preferably have the power to challenge the
constitutionality of laws and regulation or general and administrative acts. The Venice
principles stress the Ombudsman, deputies and the decision making staff shall be immune
from legal process in respect of activities and words, spoken or written, carried out in their
official capacity for the institution. This they refer to as functional immunity. In order to
underscore this point states are further urged to refrain from taking any action aiming at or
resulting in the suppression of the Ombudsman institution or in any hurdles to its effective
functioning and shall effectively protect it from any such threats.
The Venice Principles also reiterate the importance of an independent Ombudsman
institution. The principles state that the right to complain to the Ombudsman is in addition
to the right of access to justice through the courts. The Venice Principles underscore the fact
that the mandate of the Ombudsman shall cover all general interest and public services
provided to the public whether delivered by the state, by the municipalities, by state bodies
or by private entities. Venice Principles recognise that the Ombudsman should be given an
appropriately high rank, also reflected in the remuneration of the Ombudsman and in the
retirement compensation.
All international standards clearly recognise that the mandate of the Ombudsman needs to
be strengthened. However it is in the practical implementation that the application of the
standards gets mired in the power play between the different arms of government. There is
a need for all the three arms of government to be consulted when the office of the
Ombudsman is being set up in order to avoid the type of discrepancies and interference in
the mandate of the Ombudsman, as have been exhibited in some of the examples discussed
in this paper.
The office of a national Ombudsman is mandated to investigate maladministration in the
executive arm of government. It is therefore important that the office be accorded the
highest level of administrative and legislative protection in order for it to operate as
independently as possible, and with the highest level of integrity. This explains why
international standards require that the office is established under the cover of the
constitution. Although it is funded by the Executive, the office of the Ombudsman
investigates the very same Executive Arm of Government.
13
Therefore in order to enable the Ombudsman to operate independently of the Executive,
international standards further stress the importance of the Ombudsman being appointed
and being answerable to the legislative arm of government as well as being removed from
office only by the legislature. Thirdly the judiciary contributes to the office of the
Ombudsman by providing the office with the powers equivalent to the highest independent
office, which is that of a Judge. Thus the conditions of service and remuneration packages
should mirror those of a judge of the High Court, at a minimum. Thus all three arms of
government should contribute in order to strengthen the mandate of the Ombudsman.
When we talk about the State, we mean the whole machinery of government. A
government consists of the three arms of government, i.e. the Executive, the Legislature
and the Judiciary. This is why it is important that all three of these stakeholder arms of
government are educated about the international nature and concept of the Ombudsman.
All three arms of government should thus be consulted and take part in drawing up the
legislative and institutional mandate of the office of the Ombudsman in their jurisdictions,
and their minds should be brought to bear upon the need to uphold the international
standards required to be observed for the establishment of an effective Ombudsman office.
There will also be need to address their minds to this issue of each branch of government
ceding a little of their powers in order to strengthen the mandate of the Ombudsman.