THE OMBUDSMAN AND ITS RELEVANCE IN KENYA
INTRODUCTION
The vesting of varied and enormous power in the hands of administration can and may result
to the emergence of the administrative bodies enjoying large discretionary powers in many
democratic countries of the world. Tremendous increase of power upon an administrative
body without an institution that checks or acts as a watch dog on checking that power
generates the possibilities and creates vast opportunities of the arbitrary use of that power
which when applied in the name of public good, can and may disregard individual interests.
Needless to mention that the foundation of the government of any nation must be built upon
the rights of individuals. Power corrupts absolutely. To quote Baron De Montesquieu’s
famous quotes on the concept of the rule of law, “…power corrupts and absolute power
corrupts absolutely…”
Out of necessity, most democratic nations that were prone to suffer from the above explained
arbitrary use of power devised a method to battle against or curb the likelihood of
administrative injustices. This was also as a result of courts not being able to provide a
complete review of the entire administrative field because there are a number of aspects of
administrative functioning that fall outside the judicial purview; therefore, an institution that
is very competent to deal with administrative injustices and remove the public grievances was
established. The ombudsman. The ombudsman was meant for the achievement of the above
mentioned objective (deal with administrative injustices and remove public grievances).
An ombudsman is a person who acts as a trusted intermediary between either the state,
elements of state or an organization, and some internal or external constituency, while
representing not only but mostly the broad scope of constituent interests. Ombudsman is
etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning
“representative”. In its most frequent modern usage, an ombudsman is an official, usually
appointed by the government or by parliament but with a significant degree of independence,
who is charged with representing the interests of the public by investigating and addressing
complaints reported by individuals.1
Simply put, an Ombudsman (also public advocate), is an official who is charged with
representing the interests of the public by investigating and addressing complaints of
maladministration or violation of rights. He is an independent and non-partisan officer of the
legislature who supervises the administrative sectors and deals with specific complaints from
the public against administration and maladministration. He creates a balance between the
state and the subjects of the administrative bodies that is the citizens.
1
Soumik Chakraborty. [Link] , accessed on
7th March, 2020
ESTABLISHMENT, OBJECTIVES AND BRIEF HISTORY
The establishment of ombudsman dates back in history in 1809 when the Swedish state
appointed an official called the justitieombudsman to inquire into citizens’ complaints and
report to parliament. The underlying objective was to afford the ordinary citizen some kind of
hearing and redress in a simple, inexpensive and direct fashion when allegedly dealt with
adversely by the actions of a large and remote government bureaucracy.2
The institution of Ombudsman has various objectives. According to Professor Larry Hill
some objectives of the ombudsman institution are; to right individual wrongs, to make
bureaucracy more humane, to lessen popular alienation from government, to prevent abuses
by acting as a bureaucratic watchdog, to vindicate civil servants when unjustly accused and to
introduce administrative reform.3
On the whole, the scope of the institution of Ombudsman work extends to
maladministration (basically includes service failure, delay, inaction, inefficiency,
ineptitude, discourtesy and unresponsiveness.), administration injustices (Includes an act, or
decision carried out in the Public Service or a failure to act when necessary. The
constitutional requirement of fair administrative action is simple. FAIRNESS. The
Commission steps in to ensure FAIRNESS by public officers.), misconduct and integrity
issues (The Commission investigates improper conduct, abuse of power and misbehaviour in
the public service.), advisory opinions and recommendations(The Commission provides
advisory opinions or proposals on improvement of public administration and makes
recommendations on legal, policy or administrative measures to address the specific
concerns), capacity development in government, performance contracting, Alternative
dispute resolution (The Commission works with different public institutions to promote
alternative dispute resolution through alternative dispute resolution on matters affecting
public administration.) and promotion of constitutionalism.
OMBUDSMAN IN KENYA
In Kenya, the office of the ombudsman is also known as the Commission of Administration
of Justice (herein after C.A.J). It is established by the constitution of Kenya at article 59(4)
and Administrative justice Act at section 3. Its establishment in Kenya can be traced back to
1971 when the Commission of Inquiry (Public Service Structure and Remuneration
Commission), commonly known as the Ndegwa Commission, recommended that the office
be established. This was primarily borne out of the need to address poor service delivery in
the public sector occasioned by endemic institutional and systemic failures, and poor work
ethic. In particular, service delivery in public institutions was characterized by undue delays,
abuse of power, discourtesy, inefficiency, corruption, ineptitude, manifest injustice and
misbehaviour among others. Although the intention was to improve service delivery by
ensuring civil servants do not go against the law, the proposal was never implemented. The
quality of service delivery in the public sector, therefore, continued to deteriorate thereby
eroding public confidence and trust in public institutions and public servants4.
2
The Ombudsman concept and Human rights protection by Judge Anand Satyanand. Occasional paper No. 68
January 1999.
3
OMBUDSMAN OBJECTS, <[Link] >accessed
on 7th March, 2020
4
Commission on administrative justice “office of the ombudsman”
[Link] > accessed on 9th March, 2020
The given provisions of the law mandates the C.A.J to protect the sovereignty of the people,
secure observance of the democratic values and principles by all state organs and promotes
constitutionalism by ensuring proper public administration and that the national, county and
state organs, promote the rule of law while adhering to fundamental principles of god
governance and constitutionalism.
Further, the office of the ombudsman’s core values in Kenya are; fairness (ensure people are
treated equally), accountability (act with integrity and account for actions and
responsibilities) and diversity (recognise and appreciate individual uniqueness)
In line with the foregoing and in a bid to establish the C.A.J’s relevance in Kenya, from the
petition No. 244 of 2014, it was deposed that the C.A.J is concerned that should any dispute
or disagreements arise between the two levels of government, or among state organs, the
same should be resolved amicably through alternative dispute resolution (one of the
objectives of the institution. Solving disputes by alternative methods) in the spirit of article
189 and 242 of the constitution and section 8 of the C.A.J. act. Further, C.A.J was held to be
beneficial to the court in aid of deciding whether the issue for determination accorded the
democratic values and principles in discharge of its constitutional obligations.
In Nairobi High Court Application No. 452 of 2012, The Commission successfully
defended itself in a suit filed by John Ndirangu Kariuki, in Republic vs. Commission on
Administrative Justice and the Independent Electoral and Boundaries Commission ex-parte
John Ndirangu Kariuki (Nairobi High Court Application No. 452 of 2012) following the
recommendation by the Commission to the Independent Electoral and Boundaries
Commission (IEBC) that 35 former and serving public officers, including Mr Ndirangu were
not suitable to run for any elective position. Mr Ndirangu had sought a judicial review of the
recommendation by the Commission, and a prohibition order against IEBC from acting on
the recommendation. The Court dismissed the case and reaffirmed the role of the
Commission in leadership and integrity matters.
In the Judicial review No. 429 of 2014, it was deposed that, pursuant to article 59 (5) of the
constitution as read together with section 4 of the C.A.J act, and under article 59(2)(h) to (k)
and 249 and 252 of the constitution as read with sec 8, 26, 27, 28, and 29 of the C.A.J act,
mandated amongst other things to investigate any conduct, state affairs or any act or omission
in public administration in any place of government and complaints of abuse of power, unfair
treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct
and further to deal with maladministration through conciliation, mediation and negotiation
where appropriate.
In the whole and simply put, the commission on administrative justice has many mandates,
among them are;
i. To investigate any conduct in state affairs or any act or omission in public
administration.
ii. To investigate the complaints of abuse of power, unfair treatment, manifest
injustice or unlawful, oppressive, unfair, or unresponsive official conduct.
ROLES OF OMBUDSMAN. (Explained)
Maladministration – is the primary role of the ombudsman in Kenya.
Maladministration is the actions is the actions of a government body which can be seen as
causing an injustice. It includes; service failure, delay, inaction, inefficiency, ineptitude,
discourtesy and unresponsiveness
Administrative injustices – the commission looks into allegations of administrative
injustice, which include an act or decision carried out by the public service or a failure to act
when necessary.
The constitutional requirement of fair administrative action includes; expeditious, efficient
and procedurally fair action and entitlement to written reasons for such actions.
The commission steps in to ensure compliance by public officers.
Misconduct and Integrity issues – the office of the ombudsman in Kenya ensure
compliance with the integrity requirements in the law by public officers. The commission
investigates proper conduct, abuse of power and misbehaviour of the public service
Advisory opinions and recommendations- the commission provides advisory opinions on
proposal on improvement of public administrations.
It also makes recommendations on legal, policy or administrative measures to address
specific concerns.
The recommendations may be published or confidential. It covers offices and processes in the
national and county governments.
Capacity development in government- the commission develops the capacity of national
and county government’s officials in ministries, institutions, and departments. It trains the
officials on effective measures of handling complains in-house. It also assists county and
national governments and independent state institutions, to set up complains handling
facilities
Performance contacting – the commission utilises the solution of public complains as an
indicator of performance contracting.
Public institutions submit quarterly reports detailing complaints received and actions taken.
The commission rates institutions and issues certificates on compliance. The certificate
informs the overall national rating of the institution.
Alternative dispute resolution – the commission works with different public institutions to
promote alternative dispute resolution.
It facilitates alternative dispute resolution on matters affecting public administration. The
ADR methods include, negotiation, mediation and arbitration.
Promotion of special rights- the commission promotes compliance on the rights of the
minority and marginalised groups in public administration.
This compliments its duty to secure the protection and promotion of human rights and
freedoms in public administration.
Promotion of constitutionalism - the commission serves to protect the sovereignty of the
people of Kenya. This it does by ensuring all state organs observe the principles of
democracy and constitutional values. It also ensures they respect the supremacy of the
constitution.
Access to information- the Access to information, 2016 gives effect to the right to access to
information under article 35 of the constitution. The Act obligates public entities and certain
public bodies to facilitate access to information held by them.
The act confers oversight and enforcement functions on the commission.
QUALIFICATIONS OF AN OMBUDSMAN
A person shall be qualified for appointment as the chairperson of the commission if the
person;5
a. Has knowledge and at least 15 years experience in matters relating to human rights,
law, conflict resolution, arbitration or administrative justice
b. Holds a degree from a university recognized in Kenya
c. Meets the requirements of chapter 6 of the constitution
COMPLAINTS HANDLING
A person/s can lodge a complaint in their own name or on behalf of another person, a group,
organization or institution can also lodge a complaint, the institution should provide
designated places or offices or persons where complaints will be lodged.
A complaint handling mechanism ensures that complaints are given necessary attention with
a view of improving delivery of service. Complaint handling mechanism can take the
following forms;
i. desk
ii. department
iii. institutional ombudsman
iv. commitees
complaints received must be recorded in a register, all complaints not in writing shall be
recorded in writing by the receiving officer.
All complaints received must be acknowledged appropriately within seven days. Public
unless expressly permitted by law.
ASSESING THE COMPLAINT/INVESTIGATIONS
5
CAJ Act no. 23 of 2012 section 10
An initial assessment of the nature and gravity of the complaint should be made by the
receiving officer to allow for categorization and prioritization this allows an effective
allocation of complaints to the most relevant officers.
For the purpose of investigating any matter pertaining to an inquiry, a public officer oe
agency whose services have been employed may summon and enforce the attendance of any
person for investigations and require the discovery and production of any document.
The commission upon inquiry into a complaint may take the following steps;
i. where the inquiry discloses a criminal offence , refer the matter to DPP
ii. recommend to the complainant , a course of other judicial redress
iii. recommend other appropriate methods of settling the complaint
After concluding an investigation , the commission shall make a report to the state organ ,
public office or organization. The report shall include the findings of the investigation and
any recommendation made by the commission , the action the commission considers should
be taken and the reasons for the action and any recommendation the commission considers
appropriate.6
CHALLENGES FACING OMBUDSMAN
Despite the successes of the ombudsman, it also faces a number of challenges as herein below
explained;
Impunity - Failure of institutions and public officers to respond to inquiries by the
Commission forms the biggest obstacle to quick resolution of complaints. This is because
efficiency in resolving complaints is determined by the timeliness of responses to its inquiries
by concerned public officers and institutions.
Budgetary Constraints – The institutional capacity is getting overstretched with the
increasing number of people seeking its services while the financial outlay remains
inadequate for its activities.
Decentralization – Tit is required by the law that the Commission is to decentralise its
services to all parts of the country failure of which may result to waning of public confidence
in it. Currently, it has only offices in Kisumu, Mombasa and the offices in Nairobi. This
remains a challenge.
CONCLUSION
In conclusion, the problems of citizens’ grievances which have been germinated by a welfare
state and the administrative processes have caught the attention of the world at large for
establishing an institution like ombudsman which is meant to achieve the very objective of
keeping the administration under control. Simply, the ombudsman seeks to hold the balance
between the citizen and the state.
More closely, in Kenya, the establishment of the ombudsman institution has played a major
deal in keeping and checking tabs with the administrative systems and processes to avoid
abuse of individual rights and maintain the balance; for instance, some of the major problems
that citizens complain about to the ombudsman and with which the institution addresses
6
CAJ Act part iii
earnestly include; inaction against the police, unfair dismissal from work, delays in receiving
national IDs or passports, delays in receiving pensions et cetera.
