LAW I (REGULAR CLASS) DR.
SETH WEKESA
THE OFFICE OF THE
OMBUDSMAN
ESTABLISHMENT, COMPOSITION, POWERS, FUNCTIONS,
RELEVANCE AND CHALLENGES OF THE COMMISSION ON
ADMINISTRATIVE JUSTICE AS ESTABLISHED UNDER THE COK 2010
INTRODUCTION
(Background)
The public service plays a pivotal role in the livers of a country’s citizens;
charged with ensuring that the citizenry can easily access public services.
Public servants are required to provide a responsive, prompt, effective,
impartial and equitable provision of services.
Article 21(2) of the UDHR guarantees everyone the right to equal access
to public service in their country
Article 25(c) of the ICESCR buttresses the same while outlawing any
form of discrimination
Ombudsman is a Swedish word referring to a protector of public
interests/resources.
Ombudsman is an institution that receives complaints from aggrieved
persons against government agencies, officials and employees or
acts in its motion.
Literature Review
Edward Jollife- though traditional remedies of administrative injustices exist for
aggrieved citizens, such as a court of law, they’re often impracticable, thus calling for
redress mechanisms better suited to deal with administrative injustices as they arise.
Innis Macleod- administrative law is likely to be administered in a way that occasions
more injustice than injustice in a court of law, and hence, the balance between the
legitimate needs of a government and the rights of individuals should be addressed.
John Hatchard & G.K. Rukwaro – the critical role of the ombudsman is enhanced by
shortcomings of the ‘traditional’ organs of government accountability, courts of
law, which are ideally meant to protect the citizens.
This literature review provides a comprehensive understanding of the critical role and
evolution of the Office of the Ombudsman. The foundational theories put forward by
Edward Jollife, the contextual analysis by Innis Macleod, the comparative
perspectives from John Hatchard and the localized insights from G.K. Rukwaro
collectively illuminate the multifaceted nature of this institution.
These scholarly contributions underscore the Ombudsman’s pivotal function in
promoting transparency, accountability and justice within governance
frameworks.
Establishment & History of CAJ in
Kenya
1970, ‘Ndegwa Commission of inquiry’ report recommended the establishment of
the office of the Ombudsman
Gazette notice No. 5826 of June 2007, established standing committee on
public complaints as departments within the ministry of justice, national cohesion and
constitutional affairs.
Receive, inquire into, address and deal with complaints against public officers and public
institutions concerning maladministration
Article 59 of the 2010 Constitution established the KNHREC to handle human rights
issues.
Article 59(4) – mandated parliament to restructure the commission into two or more
separate commissions.
Parliament established 3 separate commissions: KNCHR, NGEC & CAJ.
Article 59(5) provides the status of the commission.
CAJ Act was enacted in 2011 thus replacing the public complaints standing committee.
Composition of the CAJ
Article 248(2) lists down the Commissions & Independent Offices.
Article 250(1) Each commission shall consist of at least 3, but not
more than 9, members.
Section 9 of CAJ Act provides for a chairperson and 2 other
members.
Section 10 provides for the qualifications for the Commissioners.
Section 14 provides that commissioners shall be appointed for a
single term of 6 years, not eligible for reappointment and shall serve
on a full-time basis.
Powers of CAJ
Article 252(1) provides for the general functions & powers of
Commissions:- Conduct investigations on its own initiative,
powers necessary for conciliation, mediation and negotiation
etc.
Section 26 CAJ Act provides for the powers of the commission:-
Issue summons, Administer statements under oath,
adjudicating on matters relating to administrative justice etc.
Functions of CAJ
Article 249(1) provides the 3 main objectives of commissions:-
Protect the sovereignty of people guaranteed in Art 1, secure
the observance by all state organs of democratic values and
principles and to promote constitutional.
Section 8 CAJ Act provides for the functions of the commissions.
Investigating maladministration within the public sector
Facilitating the use of complaint handling capacity in public offices
Promoting the use of ADR in resolution of complaints relating to
public administration
Providing advisory opinions or proposals on improvement of public
administration
(Continued)
ATI Act 2016 mandates the CAJ to oversee the acts implementation
pursuant to article 35 of the Constitution
Section 14 of ATI Act requires the CAJ to review decisions of public and
private institutions in relation to access to information.
Section 21 provides functions of the CAJ to include investigation,
implementation, public education and promotion of access to information,
monitoring state compliance and data protection.
Section 21(3) makes the decisions of the commission binding on national
and county governments. (R v Secretary of State for Pensions Ex Parte
Bradley & others & British Bankers Association v Financial Services
Authority.)
Section 5(2)(a) of FAAA 2015 obligates public and private entities to
adhere to the principles of natural justice when taking administrative action
and addressing administrative injustices.
Limitation of the Jurisdiction of CAJ
Section 30 of CAJ Act provides areas that the Commission lacks
jurisdiction:-
Proceedings or decisions of the cabinet
Matters pending before court or judicial tribunals
Commencement/conduct/criminal/civil proceedings before courts
Grant of honors or awards by president
Matters of international relations between Kenya and other states
Relevance of CAJ
It promotes accountability of public institutions and their officers
Creation of public awareness of public institution’s complaint handling
system and service delivery charters
Systemic investigations enhances responsiveness and accountability
in the public sector
Implementation of ATI Act enhances accountability, transparency and
public participation in government operations
Complaints redress mechanisms facilitate public participation in the
operations of public institutions
Irrelevance of CAJ
Kenya Vision 2020 Delivery Board v The Commission on Administrative
Justice, Attorney General & Eng. Judah Abekah ( Supreme Court of
Kenya Petition No. 42 of 2019)
The issue in this appeal was whether the recommendations of the CAJ are
binding on public bodies or gov’t agencies. The Court of Appeal had held
that they are binding.
In overturning the decision of the COA, the SCK stated that the
recommendations of the CAJ are not binding as a recommendation can
only be binding when it’s specifically provided for in the constitution
or in law. Neither the constitution nor the CAJ Act states that they are binding.
The SCK stated that where there has been non-compliance with the CAJ’s
recommendations, the remedy is for the CAJ to prepare a report of the
failure to implement the recommendations to the National Assembly
for appropriate action
Challenges facing the CAJ
The CAJ is inaccessible to the public. Inaccessibility is measured
by its physical accessibility to its office premises, public awareness of
its location & existence and ease of lodging complaints. ATI Act is
unknown at the national and county levels.
There’s minimal cooperation with and support for the CAJ
from gov’t institutions and agencies:- Financial constraints,
inadequate number of human resources, political interference etc.
Restraints in CAJ’s Jurisdiction and powers acts as a limitation
to the execution of its mandate:- Decisions not binding(Judah
Abekah case) The extensive powers of the commission seem to be
curtailed where they matter the most; enforcement of its decision.
Recommendations
Re-thinks its awareness creation approaches and take
advantage of various modes of communication that are likely to reach
its primary constituents. Public awareness forums and campaigns.
Advocate for allocation of additional resources through the
national planning and budgeting process.
Use the additional resources allocated to hire additional staff in
order to deliver on their mandate.
Conclusion
CAJ plays an important role in the realization of good public
administration in Kenya. Therefore, courts should assist the
commission by compelling administrative bodies to comply with its
recommendations.
Public institutions should also appreciate the role of the commission
in addressing maladministration.
