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CONCEPT OF OMBUDSMAN/ADMINISTRATIVE TRIBUNAL

BY DR. ISAAC ANNAN

NB: PLEASE REFER ALSO TO NOTES ON ‘ADMINISTRATIVE JUSTICE’

STRUCTURE OF PRESENTATION

 EVOLUTION

 NATURE & SCOPE

 CHARACTERISTICS OF THE OMBUDSMAN

 ADMINISTRATIVE JUSTICE MANDATE OF THE OMBUDSMAN

 MECHANISM FOR EXERCISING ADMINISTRATIVE REVIEW

 CONCLUSION

EVOLUTION

 Concept of Ombudsman was necessitated by the growth of


bureaucracies and the need for a body to exercise control over
executive/governmental /administrative actions.

 Ombudsman simply connotes ‘grievance-handler’.

 Ombudsman is also known as the Public Protector (South Africa).

 Concept originated from Sweden - i.e justitieombudsman (ombudsman


for justice) as far back as 1809 when the Swedish Ombudsman was
established ‘to investigate allegations that the government had been
improperly trying to influence civil servants’.

 Concept developed and popularised primarily in Scandinavian countries,


e.g. Sweden, Denmark and Norway.

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 Concept spread world-wide in Europe (e.g. UK, France, Italy, The
Netherlands, Austria, etc), New Zealand, USA, Asia (e.g. Pakistan, Sri
Lanka, South Korea, etc) and Africa.

 Specifically, in the UK, where the concept has arguably been widely
recognised, was triggered by ‘the Crichel Down affair’ in 1954
(allegations of corruption and wrongdoing concerning land compulsorily
purchased by a government department (administrative body) and the
absence of a redress mechanism to deal with that allegation).

 The ‘Crichel Down affair’ led to the setting up of the Franks Committee
and its report in 1957, which recommended creation of independent
tribunals outside the court system.

 Subsequently, the 1961 JUSTICE report (the Whyatt Report titled ‘The
Citizen and the Administration: Redress of Grievances’) proposed the
creation of a Parliamentary Commissioner to strengthen the House of
Commons and MPs in their dealings with central government.

 Examples in the UK include the Parliamentary and Health Services


Ombudsman, Local Government Ombudsman, Financial Services
Ombudsman, Independent Police Complaints Commission (IPCC), etc.

Objective

 The Ombudsman is basically a public sector institution that exercises


control/oversight over public administrative bodies and/or executive
actions.

 An Ombudsman seeks to improve performance in public administration


and enhancement of executive/government accountability to the
governed (i.e. ensuring good governance).

NATURE & SCOPE

Ombudsman exercises original exclusive jurisdiction/mandate as an


administrative tribunal by complementing the court system as emphasised by
the Supreme Court of Canada in the case of B. C. Development Corporation v.
Friedman (1985) W. W. R. 193 where it was held that:

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‘...the powers granted to the ombudsman allow him to address administrative
problems that the courts, the legislature and the executive cannot effectively
resolve’

SCOPE

The scope of the Ombudsman focuses on redressing instances/complaints of


injustice arising out of maladministration by public bodies or officials vested
with statutory executive/administrative power.

 Contextually, ‘injustice’ has been interpreted broadly by Sedley J. not to


be limited to types of injury that are ‘redressible in a court of law’, but
extends to ‘the sense of outrage aroused by unfair or incompetent
administration, even where there the complainant has suffered no actual
loss’ (see R v Parliamentary Commissioner for Administration, ex parte
Balchin (No. 1) (1998) 1 PLR, 11).

 On the hand, ‘maladministration’ focuses on ‘administrative errors that


affect the manner in which decisions are reached and the manner of
their implementation, rather than only the merits of decisions’ (Andrew
Le Sueur et al, 2013, p 663).

 Richard Crossman, MP, has explained ‘maladministration’ by listing the


types of wrongdoing that illustrates maladministration namely: bias;
neglect; inattention; delay; incompetence; ineptitude; perversity;
turpitude; and arbitrariness (ibid; see also R v Local Commissioner, ex
parte Bradford Council (1979) 1 QB 287, 311-312).

The above listing/categorisation of wrongdoing in relation to


maladministration is commonly known as ‘the Crossman catalogue’.

CHARACTERISTICS

Ombudsman generally possesses the following characteristics:

 Independent of the public bodies that it investigates.

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 Remit borders on complaints of ‘maladministration’ which has caused
‘injustice’, including failure to provide services as well as exercise of
clinical judgment (see, e.g., mandate of England’s Local Government
Ombudsman under the Local Government Act, 1974; mandate of the
Health Service Ombudsman under the Health Service Commissioner Act,
1993, in particular s.3)

 Operates as an investigative body rather than an adjudicatory body akin


to the courts and tribunals

 Findings and recommendations arising out of Ombudsman investigation


are not binding