What is an ombudsman?

An ombudsman is an independent, impartial, and neutral institution with power to

examine people’s grievances against government agencies and other organisations,
both public and private sectors. After a fair, thorough review, the ombudsman
decides if the complaint is justified and makes recommendations to the organisation in
order to resolve the problem. The office of Ombudsman is originally meant
‘Representative’ of the public and at the same time, it operates as a watchdog looking
at the work of administrative law.

According to Davis “Ombudsman occupies a position of high prestige in the

Government and his job is to handle complaints from any citizen who displeased with
the action or in action of any administration or civil servant." (Davis 1961).
According to Bernard Frank, "Ombudsman means an office established by
constitution or statute headed by an independent, high level public official who is
responsible to the legislature, who receives complaints from aggrieved persons
against government agencies, officials and employees or who acts on his own motion,
and has power to investigate, recommend corrective action and issue reports". (Frank
1986)

The Ombudsman’s role configure itself as a mediator and solver of public disputes.
The Ombudsman’s Institution can play an important role in protecting people from
violation of their rights, the delivery of public services, the rule of law, and principles
of justice and equality and the overall operation of the civil justice system. Their
existence and presence ensure that administrative fairness is supported in a wide
variety of civil and business institutions.
History of the Ombudsman

An institution of the ombudsman was first established in 1809, when the Swedish
Parliament appointed the first ombudsman to protect citizens from the excesses of
bureaucracy. The idea and institution of ombudsman first permeated the Nordic
countries, then they spread throughout the common wealth countries and now they
have flooded the whole world (Reif 1999). Established democracies instituted
ombudsman as part of reforming their systems, while emerging democracies utilised it
as an instrument of democratisation. The term Ombudsman has become too
established to be challenged because it is now generally regarded as being merely
descriptive of the functions performed (Fombad. 2001).

Meaningful development of the institution internationally dates to the 1960's. '('he

period between 1960 and the early 1980's saw great institutionalisation of the
Ombudsman worldwide (NDL 2000). It is worth noting that "many countries adopted
an Ombudsman after independence from colonial rulers and/or periods of autocratic
domestic rule" (NDL 2000). According to the National Democratic Institute (NDI.
2000:6). "during this period. human rights issues and democratic values gained
centre-stage on international forums". Thus. there is a clear connection between the
international emphasis on human rights and the development of the Ombudsman.

The institution gained momentum and recognition in the Southern African Region
following independence in the 1960's, what Ayeni (1996) refers to as the
'Ombudsman Movement in Southern Africa'. According to Ayeni (1996). the
Ombudsman as an institution, is part of a greater design to indigenise the
governmental system adopted from colonial masters and has been modified in some
instances to suit prevailing political realities. Hence. Ayeni argues that the
Ombudsman is essentially an adaptation of the Scandinavian version" (1996).
Tanzania and Mauritius were the first African countries to adopt the idea of
Ombudsman. Mauritius followed as the next African country to establish the office
upon its parliament’s enactment of the relevant legislation in 1969 (Ayeni 1996).
The Mauritian Ombudsman

The establishment of the Mauritian Ombudsman

The institution of the ombudsman came into existence in the 1968, year in which
Mauritius became independent and adopted a new Constitution. The Office of the
Ombudsman as such was set up on 02 March 1970 to investigate administrative action
of government officials/ departments and other public bodies, and it is known as the
watchdog against maladministration which causes harm, prejudice, injustice or loss to
aggrieved citizens. Its jurisdiction was later on extended to include all Local
Authorities including the Rodrigues Regional Assembly. Mauritius was amongst the
first Commonwealth countries to adopt the ombudsman institution and the second
African country after Tanzania.

Appointment of the Ombudsman

The Ombudsman is appointed by the President of the Republic in consultation with

the Prime Minister and Leader of the Opposition. The President may also consult any
leader of political parties represented in the National Assembly if he deems fit. The
Constitution is clear about who is eligible to be appointed as the Ombudsman and
how the Ombudsman' Office must function. According to section 96 of the
constitution, The Ombudsman cannot be a member of the National Assembly or even
a candidate to general or local elections. He also cannot be member of a local
authority and cannot perform the functions of any other public office.

The Ombudsman office is set up in the same way as any other government institution
where the code of ethics for government officers is to be respected. The other staff of
the office including investigators and administrative staff is recruited as the rest of the
public service that is through the Public Service Commission. The staff of the office
comprises 23 persons including the Ombudsman, Mr. Soleman Hattea. The
Ombudsman office is funded by the Consolidated Fund voted directly by the National
Assembly. The Ombudsman depends on funds approved by the Ministry of Finance
and Economic Empowerment and voted by the National Assembly.
The Ombudsman Act

The Ombudsman Act was passed in 1969 and it provides for, inter alia, the oath of
office to be taken by the Ombudsman and the oath of secrecy to be taken by members
of the staff, the manner in which a complaint is lodged, the privilege of
communication, the creation of offences whenever any person attempts to influence
the decision of the Ombudsman, and administrative expenses of the office which are
charged on the Consolidated Fund with the approval of Parliament. The oath taken by
the Ombudsman and his staff binds them not to divulge any information received by
them in the exercise of their duties.

The Ombudsman can only make recommendations for further actions to be taken by
relevant head of department or authority concerned. If no action is taken by the latter,
the Ombudsman may table his recommendations to any minister concerned, the Prime
Minister or to the National Assembly if he deems fit. However, the Ombudsman
cannot initiate any legal action against public officials. The Ombudsman has a duty to
make an Annual Report to the President concerning the discharge of his functions,
Report which is also tabled before the National Assembly.

Constitutional Role and Powers of the Ombudsman

One whole chapter (IX) of the Constitution is dedicated to the Ombudsman and it
provides for the establishment of the institution, the manner in which the Ombudsman
is appointed, the extent of his jurisdiction, his powers, the procedure to be followed
when investigating and other cognate matters. The Constitution, not only retains the
Ombudsman Office but entrusts it with a number of important powers and mandates.

The mandate of the office is to investigate any action taken by any officer or authority
in the exercise of administrative functions of that officer or authority, in any case in
which a member of the public claims or appears to have sustained injustice in
consequence of maladministration. The Ombudsman does so through independent,
objective and impartial investigations. For complaints falling outside the jurisdiction
of the Office of Ombudsman, the complainants are informed accordingly and are
directed to the authority concerned.
According to Section 97 of the Constitution, the main role of the Ombudsman Office
is to investigate any action taken by any officer or authority to which this section
applies in the exercise of administrative functions of that officer or authority, in any
case in which a member of the public claims, or appears to the Ombudsman, to have
sustained injustice in consequence of maladministration in connection with the action
so taken and in which-

(a) a complaint under this section is made;

(b) he is invited to do so by any Minister of other member of the Assembly; or
(c) he considers it desirable to do so of his own motion.

The Constitution also gives clear indications on the manner in which the Ombudsman
must conduct its investigations as well as the limits of such investigations. It provides
that the Ombudsman office cannot investigate matters related to the President of the
Republic and his personal staff, the Chief Justice, any commissions established by the
constitution, the DPP or those following his instructions, or those acting on powers
delegated by the Public Service Commission (dealing with recruitment in the public
service or the Disciplined Forces Services Commission In addition to the above,
provided by the section 100 of the constitution the Ombudsman cannot intervene in
the following cases:

 Cabinet matters
 Matters relating to defense, external relations and internal security
 Matters concerning foreign missions e.g., Embassy, High Commission, etc.
 Court proceedings
 Private disputes
 Complaint against private bodies
 Complaint against local authorities and parastatal bodies. In certain cases,
however the Ombudsman seizes the parent ministry.
L. C. Reif, The international ombudsman anthology: Selected writings from the
International Ombudsman Institute (1999)

Fombad, C.M. 2001. "The Enhancement of Good Governance in Botswana: A Critical

Assessment of the Ombudsman Act, 1995" Journal of Southern African Studies,
Vol.27, No.1, 57-77

National Democratic Institute for International Affairs (NDI) 2000 "The Office of the
Public Protector in the Republic of South Africa: A Discussion of key issues in
international perspective. "

Ayeni, V.O. 1996. "The Ombudsman Concept in Southern Africa - Evolution,

Problems and Prospects" in Kasuto, E. and Wehmhorner, A (Eds). The Ombudsman
in Southern Africa; Report of a Sub regional Conference, Windhoek, Gamsberg
Macmillan, 27-S1

Davis, Kenneth Kulp, 1961. Ombudsman in America: officers to criticize

Administrative Action, University of Pennsylvania Law Review.

Frank, Bernard 1986, The Ombudsman and Human rights (Revisited).

The Constitution of the Republic of Mauritius 1968, from:

https://mauritiusassembly.govmu.org/Documents/Legislations/constitution.pdf
[Accessed: 20 February, 2021]

The Ombudsman Act 1969, from:

https://ombudsman.govmu.org/Documents/Legislations/THE%20OMBUDSMAN
%20ACT%201969.pdf [Accessed: 20 February, 2021]