THE COMMISIONER FOR THE ADMINISTRATION OF JUSTICE: THE OMBUDSMAN

It is a public agency established in 2007. It was established by the Commission of Administrative Justice Act 2011 pursuant to Article 59(4) of the Constitution.

The office was set up to deal with complaints from the public against members of staff of the judiciary. It enquires into allegations of misuse of office, corruption and unethical conduct, breach of integrity, maladministration, delay, injustice, inattention, incompetence, misbehavior, inefficiency or ineptitude.

An ombudsman is an important official who examines and acts on complaints from members of the public about the central government departments and certain government organizations. The office of the Ombudsman has greatly aided administrative justice because:

·         It provides neutral and safe environment to talk and complain about issues. This is because it is less formal than courts of law and other tribunals.

·         It listens to complaints and concerns made against government by the common citizen. This has helped improve governance since the government is kept in check.

The ombudsman also promotes administrative justice since he advocates for fair processes and procedures in the administration of justice. He also mediates conflicts between the government and the citizens. The services of an ombudsman are free of charge, and this has greatly helped since a widened scope of people can seek the services.

The independence of the office of the ombudsman has given it the right to look at government books and documents and even question any government employee. He can also ask government to pay a complainant or even correct or make amends in some way. This ensures that the ombudsman is very impartial and serves the public, hence reducing government malpractices.

Functions

1.       Investigate and prosecute on its own or on complaint by any person, any act or omission of any public office or employee, office or agency. When such act or omission appears to be illegal, unjust, improper or inefficient.

2.       Direct upon complaint or at its own instance any officer or employee of the government or of any subdivision, agency or instrumentality thereof as well as any government owned or controlled corporations with original charter to perform and expedite any act or duty.

3.       Direct the officer concerned to take appropriate action against a public officer or employee at fault or who neglects to perform an act or discharge a duty required by law and recommend his removal, suspension, demotion, fine, censure or prosecution and ensure compliance therewith or enforce it and disciplinary authority.

4.       The officer concerned in any appropriate case and subject to such limitations as it may provide in its rules of procedure to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties and report any irregularity.

5.       Request any government agency for assistance and information necessary in the discharge of its responsibilities.

6.       Publicize matters covered by its investigation.

7.       To investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct

8.       To report on complaints investigated and take remedial action

9.       Inquire into allegations of maladministration, delay, administrative justice, discourtesy, incompetency, misbehavior, inefficiency or ineptitude within the public service.

10.   Facilitate the setting up of, and building complaint-handling capacity in the sector of public service, public officers and state organs.

11.   Work with different public institutions to promote alternative dispute resolution methods in the resolution of complaints relating to public administration

12.   Recommend compensation or other appropriate remedies against persons or other bodies to which the Act applies

13.   Provide advisory opinions on proposals on improvement of public administration, including review of legislation, codes of conduct, processes and procedures

14.   Publish periodic reports on the state of administrative justice in Kenya

15.   Promote public awareness of policies and administrative procedures on matters relating to administrative justice

16.   Take appropriate steps, in conjunction with other state organs and commissions responsible for the protection and promotion of human rights, to facilitate promotion and protection of the fundamental rights and freedoms of the individuals in public administration.

17.   Work with the Kenya National Commission of Human Rights to ensure efficiency, effectiveness and complementarity in respective activities and to establish mechanisms for referrals and collaboration.

The mandate of the Commission can be summarized in broad categories:

1.       Quasi-judicial mandate to deal with maladministration

2.       Ensuring compliance with leadership, integrity and ethics requirements

3.       Litigation and quasi-judicial functions

4.       Reporting obligations

5.       Training of government ministries, departments and agencies

6.       Resolution of government conflicts

7.       Provision of advisory opinions and recommendations

8.       Promoting of constitutionalism and human rights advocacy

9.       Performance contract

The Commissioner of Administrative justice has brought about speedy and fair administration of justice. In the case of WaitheraGichino v KamauKaburu& Another, a delayed judgment for a period of 37 years has been delivered by the help of the commission.

In another case where a complainant alleged that the Teachers Service Commission promoted him to job group L in the year 2000. However, in 2002 the promotion was rescinded and subsequently demoted to job group K without any reasonable explanation. PCSC, now the commission for administration of justice initiated enquiries with TSC regarding the promotion and demotion. TSC reviewed its decision and decided to uphold the complainant’s promotion group to job group L with effect from the year 2000.

The PCSC observed that the complaint was resolved in a mutually satisfactory manner and closed it.

The Commission is doing a tremendous job in ensuring that the victims of administrative injustices get redress and are able to solve their injustices through the commission.

In the case of Kennedy O. Opande who had launched a complaint against Uhuru Park registration of birth certificates was solvsed by the Commission writing a letter to the Registrar of Persons, SheriaHouse. He was issued with the son’s birth certificate on 12^th June 2012 by the Registrar

 It investigates any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impartiality or prejudice (Article 59(2)(h)) in this respect, the Commission may:

1.       Investigate any matter arising from the administrative conduct of a public officer, State Corporation or other government agency or organ (Sec 29 of the Commission on Administration of Justice Act).

2.       Employ the services of anu public officer or investigative agency of government (Sec 28)

3.       Summon and enforce attendance of any person for examination (Sec 28)

4.       Require the discovery or production of any document (Sec 28)

5.       Requisition any public record from any public officer (Sec 28)

POWERS

·         May conduct investigations on its own initiative or on a complaint made by a member of the public (article 252 (1)(g))

·         Power to conduct conciliation, mediation and negotiation (Art 252 (1) (b))

·         Power to issue a summons to a witness to assist for the purposes of investigations (Art 252(3)(a) as read with Art 59)

·         Power to sue and be sued in own name (art 253(b))

·         Power to acquire, hold, charge or dispose movable and immovable property (Sec 5)

·         Issue summons, and require that the statements be given under oath (Sec 26 (a) and (b))

·         Adjudicate on matters relating to administrative justice (sec 26(1))

·         Obtain relevant information from any person or government authorities and to compel production of such information  (sec 26 (d))

·         Seek and obtain court orders to do searches and seizure of documents (sec 26(e))

·         To interview any person in relation to matters of administrative justice (sec 26 (f))

·         To conduct hearings and to compel attendance and provisions of answers as appropriate (Sec 26(g))

·         Full powers of a court to issue summons, subpoenas, compel production of documents, administer interrogatories and to compel disclosure of any relevant information held by any person (Sec 27)

The commission’s powers to investigate shall not be limited by any law to the effect that the action in question is final and cannot be appealed, challenges, reviewed or called into question. (Sec 31)

AMBIT OF RESPONSIBILITY

The primary responsibility of the Commission on Administrative Justice is the traditional role of the Office of the Ombudsman as known in many countries. This office checks maladministration on the part of public officers and deals with instances where such officers unreasonably delay in action; show discourtesy or misconduct; incompetent or inept and generally fail to adhere to the constitutional principles that all sovereign authority of the state draws from the people, and that all public officers to whom that sovereign power is delegated must treat the people with respect, and must be efficient, responsive and impartial and in accordance with Art 73 and 232 of the constitution.

In the context of the right to fair administrative action, Article 47 of the constitution specifically recognizes the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The commission on administrative justice is the primary custodian of that right.

Further, the commission in collaboration with sister commissions and organs will be the organ to ensure compliance with the Ethics and Integrity requirement in chapter 6 of the Constitution, and the tenets of public service in Chapter 13. In this respect, the Commission will, in conjunction with the Ethics and Anti-Corruption Commission:

a)      Ensure state officers conduct themselves with dignity, respectfully and as to promote public confidence (Art 73 (1))

b)      Ensure decisions of State officers are not influenced by nepotism, favoritism or other improper motives (Art 73(2))

c)       Ensure state officers conduct themselves in public or private as to avoid demeaning the office, or conflict of interest (Art 75(1))

d)      Keep a register as to ensure that any person removed from office for abuse of office does not hold any other state office (Art 75(3))

e)      Investigate and ensure that no state officer maintains a bank outside Kenya (Art 76)

f)       Ensure no state officer holds any other gainful employment (art 77(1))

g)      Ensure no appointed state officer holds office in any political party (Art 77(2))

h)      Ensure no state officer or member of the defense forces holds dual citizenship (art 78(2))

i)        Ensure any gift or donation to a public officer is surrendered to the state (art 76(1))

j)        Ensure declaration of wealth by public officers in complied with (Public Officer Ethics Act) and that such declarations are made available and accessible to the public. (Art 35)

k)      Ensure the protection accorded to minorities and marginalized, nationally and within countries, is respected (Art 174(e), 177 (1)(b) & 197(b))

l)        Ensure compliance with regional Ethics and gender balance whenever required in the constitution

m)    Certify persons seeking elective office have not failed the ‘ethics and integrity test’ as per chapter 6 of the constitution as read with Art 99(1)(b) and other articles.

n)      Monitor and ensure administrative arrangements of registration of voters facilitates, rather than

o)      Report on any pending complaints against any judges or magistrates in accordance with the Vetting of Judges and Magistrates Act 2011.

p)      Whenever appropriate to institute or join amicus, any suit or action challenging any administrative action or inaction, or challenging any legislation which falls below the test of administrative fairness.

q)      Generally oversee the implementation of the prescriptions in the Public Officers Ethics Act 2003.

In the undertaking of the foregoing, the Constitution will look into the conduct of all public officers, within national and county governments and will thus decentralize its offices and services to the county level for easy access by the public and more effective carrying out its mandate.

To sum up, the ombudsman serves as a structural link between the officials who are required to attain these standards and the individuals whose rights are prejudiced .However, critics of the ombudsman assert that it has no coercive powers but forgets that even in actions against governments in courts of law there is a declaratory remedy. The main pitfall for this office is that, even if it finds fault in administration. Itcan’t overturn an administrative action but can only make a recommendation and submit it to parliament. It’s ridiculous, because the ombudsman investigates complaints against government officials who are the same people who sit in parliament. ASHobbes states ‘a man cannot be bound by himself. ‘So to expect parliament to pass the findings tabled by the ombudsman, which is like evidence against themIs suicidal to their high paying career.

REFERENCES

1.       TUDOR JACKSONS THE LAW OF KENYA

2.       ADMINISTRATIVE LAW BY A.W BRADLEY

3.       THE CONSTITUTION OF KENYA 2010

4.       THE COMMISSION ON ADMINISTRATIVE JUSTICE ACT  2011

5.       KENYA LAW REPORTS

6.       www.ombudsman.go.ke