OMBUDSMAN COMMISSION
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 12th 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
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