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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

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

Information, Coordination, Training, Advocacy and Research needs of the African


Ombudsmen and Mediators Association, Cited in African Ombudsman Research Centre
Report, June 2011, 17.

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
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
2

IBA, August 1974 Resolution at Vancouver meeting of official delegates of member


organisations, Ombudsman and other Complaint Handling Systems X (1980-1)1.

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, Eore 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
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
3

who committed illegal acts or failed to do what was expected of them. The
Ombudsman also acted as a protector of peoples rights. The success of the
Ombudsman in Sweden led to its adoption in Finland in 1919 and Denmark in
1953.
The establishment of the Ombudsman in Denmark marked the beginning of
adaptation and hybridization of the institution to the local circumstances.
However, the Danish model retained the characteristics of the Swedish
model and relied on soft power, commonly known as moralsuation, and cooperation rather than coercive or adjudicative means. The popularity of the
Danish model influenced the design of the institution in Norway, New
Zealand, Spain and some African countries. In Spain, the hybridization of the
Ombudsman, Defensor del Pueblo or Public Defender, was influenced by the
need to not only ensure administrative justice, but also protect the
fundamental rights recognized under the new political dispensation. 3 The
Spanish model was later adopted in Argentina, Bolivia, Nicaragua, Colombia
and Peru among others that were transitioning to democracy due to the
Spanish legal heritage in the Latin American region.
The Ombudsman was also adopted in other regions with New Zealand being
the first Commonwealth country to adopt it in 1962 before its adoption in the
United Kingdom in 1967. In Africa, Tanzania was the first country to adopt it
in 1966 through the establishment of the Permanent Commission of Enquiry
to safeguard the interest of citizens against the bureaucracy without
inhibiting Government or Party action in development activities. In Asia, the
institution spread to countries such as the Philippines, Fiji, Papua New
Guinea, Hong Kong, Macau, Indonesia, Malaysia and more recently East
Timor with multiple competencies. It also spread to the Caribbean, Pacific
and Northern American regions although in countries such as the United
States of America and Canada, the institution exits at the state and
provincial levels. It is instructive to note that Ombudsmen that were later
created in Africa and Asia radically changed the nature and powers of the
institution as known under the classical model leading to the birth of New
Ombudsman.
The global surge of Ombudsmania has seen its establishment in over 150
countries with 47 out of the 49 European countries creating it, 47 in Africa,
3

M. R. Buades, The Internalization of Human Rights, Constitution and Ombudsman in


Spain in Ombudsman and Human Rights: Proceedings of Symposium 37 42(Natl
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.

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
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:
5

It is quite possible nowadays for a citizens right to accidentally crushed by


the vast juggernaut of the governments 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 multifaceted 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
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,
4

D Rowat An Ombudsman Scheme for Canada (1962) 28 Canadian Journal of


Economic and Political Science 253.

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
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.
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.
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.

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
statesa number of African states continue to suffer from recurrent civil
conflictas a resultAfrican 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
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
7

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

remedial action is similar to that of the Public Protector of South Africa. This
is an innovative jurisdiction of addressing non-compliance with
recommendations, which means that after carrying out inquiries,
investigations or adjudication, the Ombudsman can give binding decisions
and tangible remedies. In Kenya, the extensive nature of the jurisdiction of
the Ombudsman is evident from the definition of administrative action,
which includes:
a) a decision made or an act carried out in the public service;
b) a failure to act in discharge of a public duty required of an officer in
public service;
c) the making of a recommendation to a Cabinet Secretary; and
d) an action taken pursuant to a recommendation made to a Cabinet
Secretary.8
In Rwanda, the Ombudsman deals with anti-corruption and administrative
justice and access to information while that of Namibia deals with anticorruption, administrative justice and environmental protection. In Ethiopia,
the Ombudsman has an additional mandate of enforcing access to
information. In Nigeria, the Ombudsmans jurisdiction extends to private
actors in the context of matters relating to companies incorporated under or
pursuant to the Companies and Allied Matters Act.9
An interesting point to note is the endowment of the Ombudsman with
coercive powers such as powers to prosecute as is the case in Uganda,
Rwanda and Namibia. In Rwanda, the Ombudsman has the powers of bailiffs
and can request the Supreme Court to reconsider and review judgments
rendered at the last instance by ordinary courts, commercial and military
courts, in cases of injustices. These powers were hitherto known under the
classical ombudsmanship. The modification of the Ombudsman in Africa with
coercive powers was necessary since, as Hatchard has noted, it sought to
replace the first generation Ombudsman model in Africa with a more
effective second generation model. 10 In some cases such as Uganda, Ghana
and Tanzania, the Ombudsman was strengthened with broader jurisdictions
and stronger powers to respond to the needs of the particular countries.

8
9
10

Section 2 of the Commission on Administrative Justice Act


Section 5(2)(d) & (e) of the Public Complaints Commission Act
Hatchard, The Institution of the Ombudsman in Africa Revisited 40(4) International
and Comparative Law Quarterly 939

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 nongovernmental 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
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
10

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. NonParliamentary 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
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
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.

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 Africa
iii) Specialty offices which targets the private sector and businesses and is
common in Anglophone countries such as South Africa
iv) Dispersed collegial style such as Nigeria
v) 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 countrys 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
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:

12

See Goldstone J in President of the Republic of South Africa v Hugo, 1997 (4) SA 1
(CC); 1997 (6) BCLR 708 (CC) at para 11. The State Institutions Supporting Constitutional
Democracy or Chapter 9 Institutions are the Public Protector, the Auditor General, the
South African Human Rights Commission, the Commission for the Promotion and
Protection of the Rights of Cultural, Religious and Linguistic Communities, and the
Commission for Gender Equality.

12

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 governmentBut 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.

This position has now been affirmed by the Supreme Court of South Africa in
the recent case, the South African Broadcasting Corporation Soc. Limited
and Two Others versus the Democratic Alliance and Six Others where it held
that although Chapter Nine institutions execute their mandates in terms of
national legislation, they are neither organs of the state within the national
sphere of government nor are subject to control or direction by the
Executive.14
Drawing from the South African experience, it is safe to state that the
independent oversight institutions, such as the Ombudsman, are institutions
of the State which are outside government, but which are sui generis. This
position finds support in the primary objective of these bodies of protecting
the sovereignty of the people, which Murray aptly notes relates to the power
to monitor government and cannot, therefore, be through the exercise of
13

14

Murray, C. (2006). The Human Rights Commission et al: What is the Role of South
Africas Chapter 9 Institutions? PER, 9(2), p. 126.
SABC vs DA (393/2015)[2015] ZASCA 158 at para 25.

13

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 alternativeis to rethink 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, Montesquieus theory was not static; it reflected the position of a
small and uncomplicated government at the time.
B. ROLE OF THE OMBUDSMAN IN GOVERNANCE
Generally, the main function of the Ombudsman is the redress of
maladministration. Maladministration or bad administration refers to
administrative action or inaction based on or influenced by improper
considerations
or
conduct.18
The
most
conventional
forms
of
maladministration range from simple clerical errors to serious acts of
impropriety such as:19
injustice, failure to carry out legislative intent, unreasonable delay,
administrative error, abuse of discretion, lack of courtesy, clerical error,
oppression, oversight, negligence, inadequate investigation, unfair policy,
15
16

17

18

19

Sections 8 and 26 of the Commission on Administrative Justice Act, 2011.


John McMillan, The Ombudsman and the Rule of Law, Address to the Commonwealth
Ombudsman, Canberra, 5-6 November 2004.
Montesquieu, B. (1949). The pirit of the law. Thomas Niget with an Introduction by
Franz Neuman Hinton Press Trans. New York: Hatner.
See Wheare K.C., Maladministration and its Remedies, (1973), Steven and Sons,
London
Bernard Frank, The Ombudsman and Human Rights Revisited

14

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 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.
15

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 Ombudsmans 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)
ii)
iii)
iv)
VI.

An instrument of protecting and promoting human rights.


A mechanism of democratic control over the bureaucracy.
An avenue for redress of grievances against administrative injustices.
An instrument for tackling bureau-pathologies.

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
20

21

R. Ranjan, Concept and Role of the Ombudsman Institution in Asia in Improving and
Maintaining Public Service Delivery.
Administrative Justice and Tribunals Council. (2010). Principles for administrative justice.

16

the 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 Ombudsmans inquiry is much broader because it is concerned not just to
identify individual or systemic failure but to engage with the systems of
government to secure systemic redress in order to prevent repeated
administrative failure. It seems to me, therefore, that each of us has a
complementary role in ensuring an accountable and effective system of
administrative law.

In relation to the competencies over each other, it is worth noting that the
Ombudsman can investigate administrative malfeasance in the courts. This
would not be an affront to judicial independence since administrative
malfeasance is an administrative matter that falls within the ambit of the
Ombudsman.24 In this case, the Ombudsmans role is confined to ensuring
procedural efficiency and administrative propriety of the judicial system. 25 On
the other hand, the Ombudsman is amenable to the judicial review
22

23

24

25

Lorena G. V. The Institution of the Ombudsman: The Latin American Experience,


(2003) Revista IIDH, Vol. 37, 220.
Morgan, D. The Ombudsman and the Judge: Redressing Grievance and Holding to
Account, Address to Northern Ireland Ombudsmans 40 th Anniversary Event, 25th
November 2009.
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.
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.

17

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 courts 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 ofthat 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
irrational, or peripheral or there is genuine fresh evidence to be considered.
28
The Court further observed that the purpose of judicial review was simply
to require the decision maker to consider the Ombudsmans
recommendation as a proper basis.
In spite of the foregoing, courts have not appreciated the role of the
Ombudsman in the review of administrative action. In a number of countries,
the approach by the courts has been to consider the Ombudsman as
competitors or threats to the judiciary. Decisions have been made by the
courts that undermine the Ombudsman. In Republic of Kenya vs Vision 2030
Delivery Board and the Commission on Administrative Justice, Ex-Parte Eng.
Judah Abekah, the issue before the High Court was the enforcement of a
decision of the Kenyan Ombudsman against the Vision 2030 Delivery Board,
a public body which had been found to have acted unfairly. 29 The High Court
surprisingly held that there was no legal obligation for public agencies to
comply with the recommendations of the Commission. Interestingly, the
26

27

28

29

In isolated jurisdictions such as Fiji, the Ombudsman is not subject to judicial review.
Under section 139(1) of the Constitution of Fiji, the Ombudsman enjoys immunity from
review by any court of law.
Commission on Human Rights and Administrative Justice v Norver (2000-2002) 1 GLR
78.
Bradley & Others v Secretary for Work & Pensions [2007] EWHC 242 (Admin),
[2008]All ER (D) 98.
Nairobi High Court Judicial Review Case No. 223 of 2014.

18

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 Protectors. 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 OMBUDSMAN


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.
30
31

No 14 Above
J. McMillan, The Ombudsman and the Rule of Law Commonwealth Ombudsman, to
the Public Law Weekend, Canberra, 5-6 November 2004.

19

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.
Accordingly, the new Ombudsman in Africa has been endowed with extraordinary 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 governanceany 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.
20

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
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

32
33

No. 14 Above
The two other Commissions that were created by the restructuring are the Kenya
National Commission on Human Rights and the National Gender and Equality
Commission.

21

The Commissions mandate covers all State and Public Offices and Officers,
under both national and county governments. In sum, the Commissions
mandate encompasses the traditional role of the Ombudsman with unique
additional responsibilities. The Commission has three Commissioners
comprising the Chairperson, Vice-Chairperson and a Member whose
responsibility is to provide strategic direction and policy formulation to the
Secretariat headed by the Commission Secretary and Chief Executive Officer.
The appointment of Commissioners to the Commission is competitive,
transparent and inclusive, and involves public vetting, approval by the
National Assembly and formal appointment by the President.
i)

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
compel production of relevant information
conduct interviews
compel attendance of the Commission
conduct searches and inspections
require disclosure of relevant information
One of the significant aspects of the framework is the power of the
Commission to take remedial action under Article 59(2)(j) of the
Constitution and Section 8(c) of the Act in respect of matters it handles. This
provision goes beyond the conventional jurisdiction of the ombudsman, as
known worldwide. This means that after carrying out the inquiries or
investigations, the Commission can provide tangible remedies. For instance,
the Commission can offer remedies such as recommendations for
compensation, specific performance, restitution (in the context of
employment disputes) and apology among others.

22

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.
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 Commissions standing in
34

Section 41(a) of the Act.

23

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
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
the Notice to Show Cause or co-operate
investigations. This power is similar to that
which would amount to contempt and attract
ii)
Performance Contracting

officer has failed to respond to


with the Commission during
of the Court, disobedience of
penal sanctions.

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
24

address and resolve public complaints lodged with and against them. In this
respect, public institutions are obligated to establish mechanisms of working
with the Commission to address complaints they have received. Specifically,
the Commission is the lead agency in public complaints indicator in
performance contracting and rates public institutions on compliance with the
set guidelines. Under this system, public institutions are required to submit
quarterly reports detailing complaints received and action taken. The
Commission thereafter rates each institution and issues a certificate showing
performance in percentage, which guides the overall national rating of the
institution.
In order to enhance effectiveness, the Commission has reviewed the
parameters (Guidelines) for the Indicator which aligned this function with its
internal complaints handling function. One of the parameters in this regard is
status report on the implementation of any recommendations and decisions
of the Commission, the default of which attracts sanctions which may include
deduction of marks or non-certification. This mechanism has enhanced the
level of compliance with recommendations and decisions of the Commission
since certification of the Commission is key in the overall system of
performance contracting.
iii)

Public Interest Litigation

As a State Organ, the Commission is empowered to bring any action before


the court, whether Superior Courts or Subordinate Courts 35 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
35

36

The Superior Courts in Kenya are the Supreme Court, Court of Appeal and High Court,
Industrial Court, Environment and Land Court while the Subordinate Courts are the
Magistrates Courts, Kadhis Courts, Courts Martial and any other Court or tribunals
established by an Act of Parliament.
Regulation 34(2) of the Commission on Administrative Justice Regulations, 2013

25

interested party. Some of these matters have provided novel and new
jurisprudence in administrative justice and the rule of law in Kenya and
restated the place of the Ombudsman in Kenyas governance system. One
such matter was a complaint where it was alleged that the Executive had
failed to pay the complainant, a police torture victim, 7,122,915 Kenya
shillings that had earlier been awarded by the High Court in Embu. In this
matter, the Commission went to court to compel the Executive to comply
with the court order by paying the award. 37 Although the matter is pending
before the Court, the action has elicited action by the Executive who have
proceeded to make part payment of 5 million shillings.
In another matter, the Commission moved to court to challenge the eligibility
of a Member of Parliament (MP) to serve in public office following his
conviction of abuse of office in 2004. Article 99(2)(h) of the Constitution and
Section 24(2)(h) of the Elections Act provide that a conviction of abuse of
office is one of the grounds for disqualification for election as an MP. In this
matter, the High Court sitting in Nairobi dismissed an application by the
Independent Electoral and Boundaries Commission (IEBC) of Kenya and the
MP to have the matter dismissed on grounds of non-compliance with
procedures provided for under the Elections Act. Although IEBC and the MP
have appealed to the Court of Appeal, the matter is likely to go for full
hearing, which will set a precedent in Kenya in relation to constitutionalism
and integrity.
iv)

Reporting Mechanism

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
37

Nairobi, Judicial Review Application No. 171 of 2014; the Commission on Administrative
Justice vs. the Principal Secretary, Ministry of Interior and Co-ordination of National
Government & the Attorney General
38
Article 59(2)(j) of the Constitution and Section 8(c) of the Act

26

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
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
27

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 information 41 among
others. In addition, the power to adjudicate on matters of administrative
injustice has strengthened the position of the Commission in ensuring
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:

39

40
41
42
43
44

Article 252(3)(a) of the Constitution, Section 28(2)(a) of the Act and Regulation 19(g)
of CAJ Regulations
Section 26(e)) of the Act and Regulation (19(h) of CAJ Regulations
Section 26(d) of the Act and Regulation 19(b) of CAJ Regulations
Section 26(c) of the Act and Regulation 22(4)(a) of CAJ Regulations
Section 52 of the Act and Regulation 18(b) of CAJ Regulations
Section 8(g) of the Act and Regulation 21(b) of CAJ Regulations

28

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 encounterI
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
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 anticorruption 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.
45

46

Enhancing Human Rights and Strengthening Government Accountability: Redesigning the Ombudsman for the 21st Century, Presentation by Roberta Jamieson, the
Ombudsman of Ontario, Canada, at the The Ombudsman in Africa in the New Millennium:
Eastern and Southern African Regional Ombudsman Conference held in Kampala, Uganda
on 25th August 1998.
The Judiciary of the Republic of Kenya. (2014). State of the Judiciary and the
Administration of Justice, Annual Report, 2012-2013, Nairobi.

29

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.

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