Ombudsman in Kenya

      Comments Off on Ombudsman in Kenya

The ombudsman is an institution that receives complaints from aggrieved persons against government agencies, officials and employees, or acts on its own motion, and has power to investigate, recommend corrective actions and issue reports. [1]

It may also be an individual or public advocate appointed by a state or employed by an organization and is charged with addressing and resolving cases on maladministration or violation of rights. He or she acts on behalf of the appointer but has a level of independence.

The office of the Ombudsman is known as the Commission on Administrative Justice in Kenya.  This office was established by Article 59 (4) and by the Commission on Administrative Justice Act of 2011.

Historical Background

The word ‘ombudsman’ originated from Sweden in 1809. The title literally means “commission man”. It refers to ‘citizen’s defender’ or ‘representative of the people’ when loosely translated.

The position of Justlieombudsman was established to oversee government administration. It had mandate to hear and investigate complaints by individuals against abuses of the state. [2]

Since then the role has evolved and Ombudsman functions do not generally involve acting on behalf of complainants in the way that an advocate or lawyer would do.

Today, over 70 percent of countries in the world have established the Ombudsman at governmental level and over two thirds of African countries have an Ombudsman. According to the draft report of regional colloquium of African Ombudsmen of 2013, Ombudsman institutions have been created in every continent of the world. 35 in Africa, 14 in Asia, 9 in the Pacific, 29 in the Caribbean and Latin America, 53 in Europe and 2 in North America.[3]

The history of the Ombudsman in Kenya can be traced back to 1971 when the Public Service Structure and Remuneration Commission, commonly known as the Ndegwa Commission, recommended that the office be established.

The proposal of the Ndegwa Commission was, however, not implemented but in 2007, the President established the Public Complaints Standing Committee (PCSC) through Gazette Notice Number 5826 of June 2007.

PCSC was mandated to receive, register, sort, classify and document all complaints against public officers. However, this body lacked all the characteristics of an Ombudsman and in 2011 it was replaced by the Commission on Administrative Justice.[4]

 Functions of Ombudsman

The functions of the Commission on Administrative Action are several, as stated in Section 8 of the Act.

They include to investigate the conduct of state affairs, investigate complaints of abuse of power, to inquire into allegations of maladministration, to promote alternative dispute resolution mechanisms and to promote public awareness of policies and administrative procedures on matters relating to administrative justice.

In some jurisdictions such as Argentina, an ombudsman is first and foremost a defender of human rights. The institution’s primary function is to safeguard these basic rights then secondly it is the controller of public administrative functions.

In Australia, there are ombudsman agencies in each state; a number of industry-based ombudsmen, children’s commissioners and many other complaint handling and review agencies.

In Africa, Tanzania was first to establish this office in 1966. Its functions are the same as any other ombudsman but they do not rely on methods imported from foreign countries. Their functions are founded on their local traditions, customs and way of life as Tanzanians.[5]

 Relevance of Ombudsman in Kenya

The office of the Ombudsman safeguards citizens against arbitrary and unfair treatment. It is designed to give those with less power a voice in the operation of government or large organizations.

An example is the case of Gladys Boss Shollei vs Judicial Service Commission 2014, where the Commission on Administration of Justice was the second respondent. Complaints were made against the then Chief Registrar of Judiciary, Gladys Shollei for gross misconduct. They did investigations as mandated to ensure she was performing accordingly.

Complaints by citizens against the administration are investigated by experienced staff who are not members of the department concerned. This brings objectivity and fairness when addressing an issue.

It is also worth noting that the ombudsman is empowered to conduct own motive analysis to highlight systemic problems and raise them to the agencies affected to take on reforms.This function is seen in play in the Report on the Acquisition of the Langata Road Primary School playground Nairob iin July 2015.

The particulars in this report was the irregular acquisition of land belonging to Langata Road Primary School by private developers. The ombudsman carries out investigations pursuant to its mandate as stipulated in section eight of the Commission on Administrative Justice Act.

The CAJ in their recommendations inducted the National Land Commission to survey and confirm the acreage of Langata Road Primary School, reposes the land and issue title deed, the Nairobi City County Public Service Board to take disciplinary actions against the Chief officer of lands for abetting the illegal acquisition and the Director of Public Prosecution to institute abuse of office charge.

 

There is transparency since the office of ombudsman in Kenya publishes quarterly reports on complaints received and actions taken. Thus, errors and mistakes committed by government officials in handling the affairs of citizens are exposed.[6]

The institution not only gives relief to the aggrieved party but also prevents the conflicts from occurring by correcting systemic issues before hand.

Unlike the court system which is adversarial, this institution is inquisitorial which aims to find the root of the conflict, removing complaints at their source. This prevents them from recurring.

This method of conflict resolution is cost friendly as the costs of the office of an ombudsman are usually borne by the taxpayer and not by the complainants. One need not worry about expenses when issuing a complaint as they are already taken care of.

On the other hand, ombudsman helps in vindicating the administration. The institution acts as an ambassador by dispelling doubts about fairness and improving its image in the eyes of the public.

Even when no offence has been committed, the mere fact that the independent authority has reviewed the matter and given reasons for the administrative actions taken removes the sense of dissatisfaction and keeps the public satisfied.

 Critic of the Office of the Ombudsman in Kenya

The office of the ombudsman is limited in the matters it may investigate. Section 30 of the Commission on Administration Act 2011 states that this institution cannot investigate on criminal matters, matters pending before a court, the grant of Honors or Awards by the President among others.[7]

The Commission can also be described as a “toothless dog” as its orders are not binding. They are subject to courts and Parliament. In the case of Republic vs Kenya Vision 2030 Delivery Board and the AG 2014, the court held that the commission cannot force a state organ to comply with its recommendations. If they fail or refuse to implement the recommendations, the best the commission can do is to report the matter to National Assembly for action.

The institution is marred with allegations of corruption with uncertainty of how funds are distributed and some accused individuals are never held accountable. Maladministration is closely related to corruption, elements which undermine good governance. In the case of R vs Local Commissioner for Administration for the North East area of England, Lord Denning defined maladministration as inter alia faulty administration of inefficient or improper management of affairs, especially public affairs.

If the duty of the commission is to investigate maladministration,  it should start with ending corruption within its own offices.

At the national level, most ombudsmen have a wide mandate to deal with. The entire public sector, and sometimes also elements of the private sector for example, contracted service providers. This has created multi-functionality which may overwhelm the institution.

The approach of ombudsman schemes is at times secretive and opaque. It is unfamiliar and inaccessible to the population. Many Kenyans are not aware of its existence, therefore, is not in service to the people it was created for.

The system may have negative consequence for complainants in search of justice. Especially because the complaints are against powerful people in society who may harm them when given the chance.

The former Chairman of the commission Mr. Otiende Amollo, stated that the office is challenged in that many don’t understand the unique jurisdiction of the Ombudsman’s office. Its unique nature can be confusing given that it’s within the state but checks on the excesses of public officers. Some mistakenly view it as an appendage to the Opposition.[8]

The commission also lacks effective forms of appeal to challenge the decisions of ombudsman schemes.

Recommendations

An Ombudsman institution’s greatest challenge is its inability to grow, which is created by complacency on its part. It must, therefore, hold itself accountable at all times to its associate members and its citizenry

The commission needs to sensitize the public of its existence and train government officers on what they do what they do. The same should be extended to the public to enlighten them of this avenue when seeking legal redress.

Efficiency in handling complaints needs to be improved. There has been a rise in the number of complaints filed, from about 4,000 in 2012 to over 117,000 in 2016.[9] This signifies positive changes but this number can be increased further by making the lodging of complaints easier.

Conclusion

Administrative justice is one of the pillars of national transformation of which the Ombudsman plays an important role.

Administrations enjoy a large reservoir of powers to order and affect the daily lives of people within them. Vesting such powers in administrations generates possibilities and opportunities of abuse or misuse of these powers.[1]

On the whole, the office of Ombudsman is important because it seeks to hold the balance between the citizen and the state. Therefore, it contributes to the greater efficiency and humanity of the administrative process.

However, the CAJ’s mission to enforce administrative justice and to promote constitutional values will only be achieved if it remains independent, transparent and publicly accountable.

[1] Principles of Administrative Law, 6th Edition, MP Jain & SN Jain pg 967

[1] Administrative Law, Migai Aketch, pg 393

[2] http://www.ombudsman.wa.gov.au/AboutUs/History 5/10/2017 2:17 pm

[3]file:///C:/Users/User/Desktop/Kenya%20%20Draft%20Report%20of%20the%20Regional%20Colloquium%20of%20African%20Ombudsmen.pdf

[4] http://www.ombudsman.go.ke/ombudsman/history/ 29/9/2017 3:09pm

[5] http://heinonline.org/HOL/LandingPage?handle=hein.journals/denilp2&div=23&id=&page= 10/10/2017 8:35 am

[6] Principles of Administrative Law, 6th Edition, MP Jain & SN Jain pg 972

[7] Commission on Administrative Action Act no.23 of 2011

[8] https://www.standardmedia.co.ke/article/2000224095/ombudsman-retires-early 10/10/2017 11:32 am

[9] https://www.standardmedia.co.ke/article/2000224095/ombudsman-retires-early 10/10/2017 11:51 am

[10] Principles of Administrative Law, 6th Edition, MP Jain & SN Jain pg 967

Cases Used

  1. Gladys Boss Shollei vs Judicial Service Commission and the Commission on Administrative Justice 2014
  2. Republic vs Kenya Vision 2030 Delivery Board and the AG 2014
  3. R vs Local Commissioner for Administration for the North East area of England