By Dr.

Otiende Amollo, EBS, Chairperson of the

Commission on Administrative Justice
A Presentation to 40th Anniversary Retreat of the Public
Complaints Commission on the theme Repositioning
the Ombudsman for Better Performance.
Abuja - Nigeria
16th October 2015

Based on the Social Contract Theory

Ombudsman - Agent or Representative of
the People
Naked Emperor Paradigm Speaking Truth
to Power
General Mandate

1.

2.
3.
4.

Redress of Grievances against Administrative

Injustices
Democratic Control over the Bureaucracy
Tackling of Bureau-Pathologies
Protection of Human Rights

Religious Foundation [Christianity & Islam]: Prophet

Nathan and King David Episode

African Traditional Societies Rwanda & South Africa

- Makhadi among the Venda Community in South Africa

Greece 700 BC to 500 BC

Roman Empire 300 BC

China 3 BC to 220 AD

Lokayukta Concept in India

Swedish Development
- Highest Ombudsman 1713
- Parliamentary Ombudsman 1809

Finland 1919

Denmark 1953 Hybridization & Influence on Future

Ombudsmen

Influence of Spanish Model in Latin America

New Zealand 1962
Global Spread [Ombudsmania]
Over 150
Countries

1.
2.
3.
4.
5.
6.

Europe 47 out of 49
Latin America 14
Asia 17
Africa 44
Australasia & Pacific 11
North America 4 [State and Provincial Ombudsmen]

Extension to supra-national Bodies UN, EU, the

Commonwealth, ADB & Private Sector
Establishment of Umbrella Bodies: IOI & AOMA
Nomenclature Public Defender Attribute
Powers and Modus Operandi

Factors that fueled the Growth of the Ombudsman

Growth of the Welfare State after WWII resulting
in growth of administrative agencies
Inadequacies of the existing accountability
Mechanisms
Increased Focus on Civil Liberties
Diminishing Oversight Capacity of the Legislature
Emergent Threats to Statehood Corruption,
Maladministration & Impunity
Litigation Deficits Time, Cost, Formality,
Accessibility & Justiciability
Second Wave of Democratisation in Late 1980s

Tanzania (1966) Leading the Pack

Continental Spread in 44 Countries
Establishment of the African Ombudsman &
Mediators Association
Second
Generation
or
New
Ombudsman
characterized by:
-

Extensive
Jurisdiction
beyond
the
Classical
Ombudsman Investigating Parliament [Kenya &
South Africa]
Jurisdiction Beyond the Public Actors Namibia &
Nigeria
Multiple Competencies Administrative Justice, AntiCorruption & Human Rights [Ghana, Tanzania,
Rwanda, Namibia & Uganda e.t.c.]
Coercive Powers Powers to Prosecute [Rwanda,
Namibia & Uganda], Powers of Bailiffs (Rwanda)
Innovative Powers Adjudication [Kenya] & Remedial
Action Binding Decisions [Kenya & South Africa]

Public Sector
(Specialty)

versus

Private

Parliamentary
Parliamentary

Fused versus Unfused

Single Membership versus Collegiate

Membership

versus

Sector

Non-

Anchorage in Legal System

Placement in Structure of State Sui Generis

Institution [Affirmation by the Supreme Court
of South Africa in the recent case SABC vs DA
(393/2015) 2015 ZASCA 158]

Role in Governance & Democracy

-

Complaints Handling
Systemic Investigations
Alternative Dispute Resolution
Constitutionalism Accountability for Actions
Promotion of Social Justice - Fairness

Review of administrative action Grievance Redress

Mechanism
Complementarity with the Courts
Advantages over Courts Cost, Time, Inquisitorial,
Flexibility, Range of Remedies & Accessibility
Competencies over each other Administrative Review
versus Judicial Review
- Bradley & Others vs Secretary of State for Works and Pensions (UK)
- Commission on Human Rights and Administrative Justice vs Norver
(Ghana)

Non-appreciation of the Complementarity Court Decisions

regarding the Ombudsman.
- Republic of Kenya vs Vision 2030 Delivery Board & the Commission on
Administrative Justice (Kenya)

SABC vs DA on meaning of Remedial Action. A Paradigm

Shift?

Functioning of the Classical Ombudsman hinged

on Moralsuation and Parliamentary Reporting
Contradictory Context Nature of Work vis--vis
Placement &Soft Power

Challenge of Enforcement
-

Moralsuation Applicable in Africa?

Inadequacies of Parliamentary Reporting

Quality & Frequency of Debate,

Politicization of Ombudsmans Work

Danger of Judicial Enforcement Negation of

the Existence of the Ombudsman

Commission on Administrative Justice (CAJ)

Establishment:
Article
59(4)
of
the
Constitution and CAJ Act, 2011
Mandate

Maladministration
Misconduct and Integrity
Advisory Opinions and Recommendations
Training of Public Officers
Performance Contracting
Alternative Dispute Resolution
Special Rights
Shared Role in Constitutionalism

Powers of the Commission:

Powers of the Court
Issuance of Summons and Orders
Adjudication
Searches and Inspections
Statements under Oath
Compel Production of Relevant Information
Conduct Interviews
Compel Attendance of the Commission
Remedial Action Compensation e.t.c

Innovative Enforcement Mechanisms

1. Submission of Reports to Appropriate Agencies
S. 42(1) & (3) with timelines for Responses
2. Notice to Show Cause
- Unresponsiveness
- Compliance Level of 98%

3. Summons Penal Sanction

4. Performance Contracting
- Resolution of Complaints by Public Agencies
- Certification and Rating by the Commission
- Reporting Requirement on Implementation of
Recommendations and Decisions of the Commission
- Sanctions for Non-Compliance

5. Public Interest Litigation

- A Party, Interested Party or Amicus Curiae
- Lisa Catherine Matter Compliance with a Court Order

6. Reporting Mechanism
- Annual
- Bi-Annual
- Special

7. Citation Register
- Unresponsiveness & Malfeasance
- Sanctions under Performance Contracting
- Naming & Shaming in Annual Report

8. Huduma Ombudsman Awards

- Rewarding

9. Inspections (Spot Checks)

10. Use of Coercive Powers
- Investigations
- Adjudication
- Remedial Action

Maladministration, Corruption and Impunity are threats to

statehood especially in Africa.
Ombudsman plays a key Role in promotion of Good
Governance and Constitutionalism in Africa. To this end,
the Ombudsman should:
1.
2.
3.
4.

5.
6.

Exhibit Independence in Operations

Innovate and Adapt to the changing needs of society
Relevance
Adapt a Model that effectively address the circumstances of
its people
Actively participate in the fight against corruption Directly
or Indirectly, including giving Companionship to the anticorruption agency.
Appreciate the Complementary Relationship with the Courts
Encourage Partnerships and Linkages, including Exchange
Programmes

Q&A