Republic of Zambia OFFICE OF THE PUBLIC PROTECTOR

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Republic of Zambia

OFFICE OF THE PUBLIC PROTECTOR

A Paper Presented during a facilitated discussion (AORC- AOMA) by H.E Mrs.

Caroline C.Z Sokoni - Public Protector of the Republic of Zambia

Topic: Why is there need to strengthen the mandate of the ombudsman

Date: 21st September, 2021.

Duration: 15 minutes Maximum

In celebration of Ombudsman Month which is normally held in October each

year and to raise awareness of the Ombudsman institution, AORC hosted this

facilitated discussion dealing with effective tools to strengthen the mandate

of the Ombudsman institution.

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WHY IS THERE NEED TO STRENGTHEN THE MANDATE OF THE OMBUDSMAN

The office of the Ombudsman is a unique institution in that it investigates the very

institution that facilitates the creation of both its legislative and institutional framework,

that is, the Executive arm of government. The office of the Ombudsman is a creature borne

out of the political will of the government. Political will refers to the active commitment by

the government of the day, to pursue and seek to achieve through stake holder

consultation, a particular policy objective, which process subsequently legitimises the

implementation of the policy with the passing into law of the supporting legislative,

institutional and financial framework. There can be said to be lack of political will if there is a

lack of commitment at any stage of the formulation, development and implementation of

the policy objective.

The nature of an Ombudsman’s work is to investigate maladministration. Maladministration

is the root cause of corruption. It is often referred to as petty corruption, yet often the

impact of both corruption and maladministration have deep reverberations in the public

service delivery system. It is no small injury when a member of the public is unfairly

hindered from gaining access to the services that he deserves, as of right even though the

financial impact may not be felt on a macroeconomic level. Maladministration may be

termed petty corruption simply because of some of the activities, such as discourtesy, to

give just one example, have negligible effects on the government’s resources. However in

terms of the law, maladministration is as much an offence as corruption and more so

because it creates obstacles to equal access of services and benefits of these services to all

One of the classic definitions of maladministration is that it refers to administrative action or

inaction based on or influenced by improper considerations or conduct.1 The implications of

placing an institution in the precarious position of investigating an administration to which it

is answerable raised a conundrum for the founding fathers of Ombudsmanship. The

problem begged for an airtight solution, in order to consolidate the independence and

integrity of the ombudsman institution. In the classical model developed in Sweden, the

ombudsman was made answerable to Parliament in order to ensure that the governed

could freely make the public service officials answerable to them. In other words, making

the Ombudsman answerable to parliament where the representatives of the people

congregate in order to make laws, ensured that public service officials could not use

government bureaucracy or officialdom in order to negate the investigations of the

Ombudsman. Thus it came to pass that the Ombudsman is appointed by the legislature, is

answerable to the legislature and in the event there is need to prematurely terminate an

Ombud’s term of office, only the legislature may do so.

1 K.C Wheare; Maladministration and its Remedies; Stevens Publications,

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The doctrine of separation of powers helped to ease the Ombudsman into a much more

preferable position. The conflict of interest arising from investigating the same body which

can appoint and dismiss the Ombudsman was wisely resolved by placing the Ombudsman

right at the centre of the doctrine of the separation of powers. This is evidenced by the fact

that the Legislature appoints or in some instances, the legislature recruits the Ombudsman

through a competitive process and then recommends to the Head of state who is the head

of the Executive, to appoint the Ombudsman. The Ombudsman is made accountable to the

legislature and this provides the required checks and balances in order to further secure the

independence of the office of the Ombudsman. In other systems the President appoints the

Ombudsman, subject to ratification by the Legislature. Termination of employment is

carried out in a procedure similar to removal from office of judges. The job of the judiciary

in the triangular arrangement of the separation of powers in strengthening the mandate of

the Ombudsman is to provide the conditions of service which are drawn from the judiciary.

The need to further strengthen the mandate of the Ombudsman in the area of terms and

conditions of service became glaringly clear as it was not possible for a low level ranking

ombudsman to investigate high ranking government officials and require them to comply

with the recommendations of the Ombudsman, when an inquiry regarding

maladministration lies against them. The position of the Ombudsman has therefore been

equated to that of the high ranking judicial office of a Judge, with all the accompanying

powers of the office, except the power to make binding decisions. The position has also

been vested with the conditions of service and remuneration of a Judge. However, it is the

lack of power to make binding decisions which has attracted wide debate as to whether the

Ombudsman must be vested with equivalent enforcement powers as those of the courts of

law, when the final investigative report is submitted for implementation. Once

recommendations for the remedial actions required to be taken by errant public service

officials or an entity whose public service delivery falls short of the required standards, in a

classical ombudsman system, the ultimate enforcement mechanism open to the

Ombudsman is to submit the report to the Legislature’s committee system. The question

often asked of the Ombudsman is as to whether stopping at the point of making

recommendations when finalising the investigative report is sufficient for enforcement

purposes.

In Zambia, the mandate of the Public Protector was strengthened by making the

recommendations issued in the final reports binding. The provisions were couched very

clearly. There was no ambiguity at all. The Constitution of Zambia under Article244 (5),

states as follows:-

“The Public Protector has the same powers as those of the High Court in –

a) Enforcing the attendance of witnesses and examining them on oath

b) Examining witnesses outside Zambia

c) Compelling the production of document

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d) Enforcing decisions issued by the Public Protector

e) Citing a person or an authority for contempt for failure to carry out a decision

f) A person summoned to give evidence or to produce a document before the Public

Protector is entitled in respect of that evidence or the production of the document,

to the same privileges and protection as those that a person would be entitled to

before a court.”

Furthermore the Constitution of Zambia states that one must be qualified to be a judge in

order to eligible to be appointed to the office of Public Protector and it further states that

removal of the public protector from office shall be the same as removal of a Judge from

office. All these measures were put in place in order to strengthen the mandate of the office

of the Public Protector.

However, In the case of The Public Protector for the Republic of Zambia and Indeni

Petroleum Refinery;2 the Public Protector appealed on a preliminary matter to the

Constitutional court on the ground that the reports of the Public Protector were not

amenable to judicial review since the office of the Public Protector enjoyed equivalent

powers to the High Court, pursuant to the constitutional provisions. The Constitutional

Court on page J15 of their judgment however held inter alia, that the provisions or the

Constitution provided for a restricted jurisdiction for the Public Protector which was specific

and restricted to investigations of allegations of maladministration by a state institution.

The Constitutional Court observed that in contrast to the jurisdiction of the Public Protector,

the jurisdiction of the High Court was unlimited and original for civil and criminal matters,

appellate and supervisory jurisdiction and jurisdiction to review decisions, in accordance to

the law.

The Zambian Constitutional Court further relied on the South African authority of “The

Minister of Home Affairs v The Public Protector”, 3 where the Supreme Court of South

Africa stated regarding the Public Protector of South Africa that :-

“The Public Protector is not a court, does not exercise judicial power and cannot be

equated with a court. Her role is completely different to that of a court and the

jurisdictional arrangements for the courts are entirely irrelevant to a determination of the

Public Protector’s jurisdiction. It is necessary to look to section 182 of the Constitution and

the Public Protector Act to ascertain the bounds of the Public Protector’s jurisdiction”.

The Constitutional Court of Zambia then went on to rule similarly in the case of Zambian

case. They stated inter alia, that it is evident that the Public Protector is not a court as

Article 120 of the Constitution clearly states the composition of the Judiciary and does not

include the office of the Public Protector.

2 PUBLIC PROTECTOR FOR THE REPUBLIC OF ZAMBIA V INDENI PETROLEUM REFINERY COMPANY (484/2018/CCZ/R001), (CONSTITUTIONAL JURISDICTION) SELECTED JUDGEMENT NO. 16 OF 2019 3 MINISTER OF HOME AFFAIRS V PUBLIC PROTECTOR (308/2017) 2018 ZASCA 15

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They further stated that the Constitution does not contain any express provision which

equates the Public Protector to the High Court. The holding of the Court is of course in

direct contrast to the provisions of the Constitution. The Reports of the Public Protector

were after the Constitutional Court’s ruling, made amenable to Judicial Review. The

Constitutional Court therefore interfered with the provisions of the Constitution by

interpreting them strictly in order to curb the strengthened mandate of the Public Protector

which equated the powers of the office to that of the High Court under the Constitution.

Thus in the judgement delivered for the case of Indeni Petroleum Refinery Company and the

Public Protector4, which was an application, for judicial review filed by Indeni Petroleum

Refinery Company, against the ruling of the Public Protector to reinstate two former

employees of the Applicant institution, the High Court quashed the decision of the Public

Protector for illegality, and the High Court observed as follows on page J28 of the

judgement:-

“It is therefore important that public bodies ought to always confine the exercise of their

powers within the confines and parameters of the law and guard against being used for

purposes other than that for which they were created”.

This ruling was in direct contrast to the provisions of the Zambian Constitution as the Public

Protector, taking the literal rule interpretation of the Constitution, had not acted ultra vires

its powers as was stated in the Court’s judgement. Indeed the Constitution clearly states

that the Public Protector shall hear an appeal by a person relating to an action or decision

taken or omitted to be taken in respect of that person and the Constitution further states

that he Public Protector may make a decision on an action to be taken against a public

officer or Constitutional office holder, which decision shall be implemented by an

appropriate authority. However the High Court reasoned that once the office transitioned

from the executive ombudsman system of the Investigator General to the parliamentary

ombudsman system of the Public Protector, the Public Protector continued to investigate

matters carried over from the Investigator General era, but used the powers of the office of

the Public Protector to finalise them. The court insisted that this was wrong and that the

office should have finalised the case under the defunct Commission for Investigations Act.

The court also objected to the matter being completed after six years of investigations.

It is important to note that when the office of the Public Protector Zambia was still

operating as the office of the Investigator General, the office of the State President had

continually declined to review the Indeni Report, which case was the subject of the judicial

review proceedings. Since the office was an Executive Ombudsman, the enforcement

mechanism was a final endorsement of the Investigator General’s Report, from the State

President, whether he was in support of the Investigator’s Report or not.

4 INDENI PETROLEUM REFINERY V THE PUBLIC PROTECTOR FOR THE REPUBLIC OF ZAMBIA 2017/HN/407

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Thus when the office transitioned to that of the Public Protector, the Public Protector used

the enforcement mechanisms available under the Public Protector Act, as the Commission

for Investigations Act had been repealed. As the Executive had not supported the

Investigator General in reviewing the final Indeni Report, the report was not acted upon

until the powers of the office of the Ombudsman Zambia were enhanced. Thus, when the

office transitioned from an Executive to a Parliamentary reporting system, the Public

Protector Zambia issued a final report, which had a binding effect on the respondents

pursuant to the enhanced powers under the new Constitution. The matter was taken to

court by the Respondents, and the resultant judgement watered down the powers of the

Office of the Public Protector Zambia (OPPZ). The institution now must budget for litigation

costs as a matter of priority.

Similarly in the South African case of The Economic Freedom Fighters v The Speaker of the

National Assembly5, the mandate of the Public Protector South Africa, (PPSA), was

strengthened when the Constitutional Court of South Africa delivered its judgement, which

converted the recommendations of the PPSA, into binding decisions. The judgement

concerned the powers of the PPSA, to take appropriate remedial action. The power to

recommend appropriate remedial action is part of the Constitutional powers of the Public

Protector of South Africa. The Speaker contended that the PPSA’s power to take remedial

action merely amounted to recommendations and thus the remedial action was not binding

and the opposition in Parliament who had taken the Speaker to Court over the matter

insisted that the Public Protector South Africa’s remedial action powers were binding on the

concerned parties. The Constitutional Court disagreed with the Speaker of Parliament, and

ruled that the Public Protector’s remedial action ruling in an investigative report were

binding. Consequently, because the Public Protector’s Report regarded corrupt practices by

the office of the State President, the Constitutional Court read the remedial action issuing

powers of the Public Protector much more broadly and thus made the recommendation for

remedial action binding. Before this judgement, the remedial recommendation of the Public

Protector had always been taken as a mere recommendation, which protected the Public

Protector from litigation from government departments which were not happy with findings

of the Public Protector.

As a consequence of the Constitutional Court of South Africa’s eagerness to buttress the

enforcement powers of the Public Protector in the Nkandla Judgement, the Public

Protector’s office fell afoul of the system. The PPSA did not deliver an acceptable ruling in

view of some of the stakeholders. This was in its later report regarding the Reserve Bank of

South Africa.

5 Economic Freedom Fighters and Democratic Alliance v the Speaker of the National Assembly and ORS (2016) ZACC 11

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The South African Constitutional Court in a majority judgement delivered on the 22nd of July

2019, upheld the North Gauteng’s High Court Order issued in February 2018, for the Public

Protector to be held liable for 15% of the legal fees in the case of the Public Protector v the

Reserve Bank of South Africa6, for procedural errors which would have been easily corrected

had the PPSA’S appropriate remedial action conclusions been left at the level of

recommendations and not binding decisions.

The facts of the case are that between 1986 and 1995, the Reserve Bank of South Africa lent

colossal amounts of money to a company known as Bankorp. Absa acquired Bankorp in April

of 1992. In 1997 the South African government began to pursue the repayment of Bankorp’s

still unpaid loan from the Reserve Bank of South Africa. An audit of the loan transaction had

elicited the information that fraud and maladministration characterised the financial

assistance given by the Reserve Bank to Bankorp and by extension to Absa who had

purchased Bankorp. After various further internal inquiries, the matter was referred to the

office of the Public Protector. After seven years of investigations, a report was issued by the

Public Protector. The report was issued after the Nkandla judgement had directed and thus

converted the remedial action recommendations into binding decisions of the Public

Protector. Before the report was finalised, the Public Protector consulted with the

Complainants, who were the government, however she did not consult with the respondent

institutions, being Absa and the Reserve Bank of South Africa. In his dissenting judgement,

Chief Justice Mogoeng summarised Absa and the Reserve Bank’s objection to the Public

Protector not having consulted with them as well, as follows:-

“The Reserve Bank contended that the Public Protector failed to conduct a fair and

unbiased investigation. This it argues constitutes a reasonable apprehension of bias. That

she met with the Presidency and the State Security Agency just before publishing the final

report, but did not afford the Banks the same opportunity for engagement, is said to

support the contention that she was reasonably apprehended to be biased. In particular,

because she brought about substantial changes to the provisional remedial action in her

final report, as a result of the Presidency input. The criticism is that she should not only

have been upfront about her meetings with the Presidency, but she should also have

solicited the views of the Banks again at that stage”.

The Reserve Bank of South Africa also objected to the Public Protector’s final remedial

action for the Chairperson of the Portfolio committee on Justice and Correctional Services to

initiate a process that would result in the amendment of the South African Constitution. On

the basis of the remedial action finding, the Reserve Bank of South Africa asked for a

punitive costs order against the Public Protector in her personal capacity and also asked for

a declaration that she abused her office in her investigations.

6 PUBLIC PROTECTOR V SOUTH AFRICAN RESERVE BANK (2019) ZACC 29, CONSTITUTIONAL COURT OF SOUTH AFRICA: CASE CCT 107/18

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Although it is not being stated openly, the most concerning part of the Public Protector’s

Report was because of, and since the Nkandla case, the remedial action proposals contained

in the Public Protector’s report had now become binding and the Reserve Bank and the

legislature would have been compelled to comply with the remedial action resolution of the

PPSA.

In this case, the Public Protector advanced five grounds of appeal, two of which were that

the Public Protector had constitutional immunity from being personally penalized for

actions undertaken during the course of her official duty and secondly that the personal

costs award interfered with the independence of the Public Protector and would inhibit her

from exercising her powers without fear, favour or prejudice. The Constitutional Court still

upheld the High Court’s ruling that the Public Protector pay 15% of the Reserve Bank’s costs

in her personal capacity. Judge Mogoeng observed:-

“After all, courts exist not to rush or destroy, but to teach or guide, caution or deter, build

and punish and constructively. And that ought to be the purpose of the law in our

constitutional dispensation, considering our injustice-riddled past. The law ought not to

be applied mechanically, regardless of whether the outcome yields justice or inequity.”

The Judgements delivered in Zambia and South Africa concerning the office of the

Ombudsman have the potential to not only undermine the independence of the office of

Ombudsman, but to equally erode instead of strengthen the mandate of holders of the

Office of Ombudsman. The principle which requires that an Ombudsman only make

recommendations was meant to protect the Ombudsman from being victimized for reports

issued pursuant to the finalization of an investigation. Had the powers of Office of the Public

Protector Zambia and Public Protector South Africa remained at the level of

recommendations, the litigation under discussion might have never occurred.

The surest way of strengthening the mandate of the institution of the Ombudsman is for the

Ombudsman to make recommendations instead of issuing binding decisions. From the two

examples cited in this paper, it is evident issuing of binding decisions makes the

Ombudsman amenable to review of its decisions by the courts of law. The courts also seem

to feel threatened by the judicial powers of the Ombudsman and there is always a

temptation by any one of the three arms of government, to trim down the powers of the

Ombudsman. It is thus an exercise in futility for the decisions of the Ombudsman to be

subjected to judicial review. It is as good as telling complainants to the office of the

Ombudsman to proceed directly to the courts of Law. Furthermore it becomes expensive for

the Ombudsman to always be in court litigating. Thus the classical Ombudsman model of

the Ombudsman submitting reports to Parliament for enforcement purposes is much the

preferred method of finalising contentious matters for the Ombudsman.

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The marriage of issuing recommendations with enforcement from the legislature is however

not without its down sides. The legislature also needs to be brought up to date with how

important the Parliamentary Committee system is for the Ombudsman as an enforcement

mechanism for the recommendations of the Ombudsman. The Irish Ombudsman submitted

a case for Parliamentary review. In her letter to the Irish Parliament the Ombudsman stated

as follows:-

“The office of the Ombudsman relies on the authority which comes from its

independence, impartiality and competence to gain fair play for people who have

been wronged by public bodies. As Ombudsman I do not make binding decisions.

The Department is free in law to reject my recommendations. My only recourse,

when I consider that a public body’s response to a recommendation is

unsatisfactory, is to make a special report to each house of the Oireachtas under the

Ombudsman Act 1980. This is such a report.”7

In a paper entitled, Relations between Ombudsmen and Parliament, former Irish

Ombudsman Emily O’Reilly discussed the Lost at Sea Case8 report, which she had submitted

to Parliament for enforcement of payment of compensation of €245,000.00, to be paid to

the widow of a fisherman who drowned at sea in 1981 when his trawler sank with the loss

of four other lives, including that of his sixteen year old son. The Ombudsman’s

recommendations for redress for the complainant were made under a statutory

compensation scheme which did not cover the claim; however the Ombudsman under her

mandate to provide relief, requested for an exception to the general rule created by the

statute, The Department of Agriculture and Fisheries rejected the Ombudsman’s

recommendation to pay compensation. The Ombudsman then submitted a Special Report

to Parliament seeking enforcement of her decision. The report also contained information

regarding the role played by the Minister. When the matter came before Parliament, the

government of the day had a majority in Parliament and the parliamentary whip system was

used in order to over-rule the recommendations for compensation contained in the

Ombudsman’s report. This defeated the whole purpose of sending the matter for

parliamentary review as the government used the parliamentary whip system in order to

have the report thrown out.

7 https://www.ombudsman.ie>publications>lost-at-sea 8 https://www.ombudsman.ie/en/News/Speeches-Articles/2011/Relations-between-Ombudsmen-and-Parliaments.html

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Emily O’Reilly wrote:-

“The chain of independence envisaged by the Oireachtas, (Legislature of Ireland),

when it enacted the Ombudsman Act has been broken in this case and that can only

be to the detriment of members of the public who have received unfair treatment at

the hands of the public bodies and who rely on the office of the Ombudsman to

provides a remedy for their complaint in a fair, effective and independent manner”.9

In support of his predecessor’s submission, the former President of the International

Ombudsman Institute and successor to Emily O’Reilly as Ombudsman of Ireland, Peter

Tyndall submitted as follows in his concluding statement regarding the issue of the

relationship between Parliament and the Ombudsman :-

“An Ombudsman should not be above scrutiny by Parliament but any such

process should not be tainted by narrow political considerations. If an Ombudsman

makes recommendations which are objective, supported by the evidence of the case

and the law and he or she recommends redress which is appropriated and

proportionate then Parliament should bring its authority to bear on behalf of the

complainant in order to overcome any resistance to full implementation of the

Ombudsman’s recommendations”.10

There are a number of international instrument that give guidance on how the mandate of

the ombudsman can be strengthened. However largely due to the lack of a uniform and

mandatory standard setting international instrument regarding the office of the

Ombudsman, governments continue to grapple with the problem of how to define the role

of the Ombudsman in relation to the three arms of government. The need to solve this

problem is the only way the mandate of the Ombudsman can be strengthened. Let

international instruments be made to come to bear upon governments, and let them all sign

up to international agreements to recognise and give support to the singular mandate of the

office of the Ombudsman.

UN General Assembly Resolution 65/207 of 21st December 2010 encourages the

Ombudsman institutions to operate in accordance with the Paris principles and other

relevant international instruments in order to strengthen their independence and

autonomy. Each and every UN General Assembly Resolution stresses the importance of the

autonomy and independence of the Ombudsman in order to enable them to consider all

issues related to the field or their competences.

UN General Assembly Resolution 69/168 of 18th December 2014 encourages member states

to consider the creation or the strengthening of independent and autonomous Ombudsman

institutions. 9 ibid 10 Speech by Ombudsman Peter Tyndall at the 3rd International Symposium on Ombudsman Institutions, Ankara, Turkey on 17th September 2015

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The United Nations General Assembly General Assembly also requested member states to

endow Ombudsman institutions with an adequate constitutional and legislative framework

in order to ensure the efficient and independent exercise of their mandate and to

strengthen the legitimacy and credibility of the Ombudsman institution as a mechanism for

the promotion and protection of human rights.

Under resolution 68/171 the General Assembly recognised that National Human Rights

Institutions, (NHRIs), among which includes Ombudsman Institutions, and their respective

members of staff, should not face any form of reprisal or intimidation, including political

pressure, physical intimidation, harassment or unjustifiable budgetary limitations, as a result

of activities undertaken in accordance with their respective mandate. Resolution 68/171

also stresses the importance of the financial and administrative independence and stability

of NHRIs. Autonomy and independence of national human rights institutions is a recurring

theme. Thus the resolution especially laid emphasis on the importance of the autonomy and

independence of Ombudsman institutions.

Similarly, the International Ombudsman Institute By-Laws have set a high standard for

countries around the world to abide by when establishing Ombudsman institutions. The IOI

have stressed the underpinning principle for an Ombudsman institution to function

effectively is independence. In Article 2(2) (f), it is clearly stated that the office of the

Ombudsman should have the power to make recommendations in order to remedy or

prevent maladministration, abuse of office, violation of rights, corruption or any injustice

caused by a public authority. Under Article 2(2) (d) the IOI reiterates that the office of the

Ombudsman should operate as independently as possible without anything or anyone to

compromise its independence.

The African Ombudsman and Mediators Association also laid down standards for the

establishment of an Ombudsman Office. These are known as the OR Tambo Declaration on

the Minimum Standards for an Effective Ombudsman Institution. The standards require that

the independence and autonomy of the Ombudsman institution must guaranteed by the

Constitution, and that the Ombudsman shall be immune from being sued or prosecuted in

his or her own capacity. Furthermore, the OR Tambo Declaration states that the minimum

rank and remuneration level of an Ombudsman should be commensurate with the

responsibility of the office, with the minimum rank at the level of a Judge of the High Court.

It further stresses on the need for the Ombudsman to operate as independently as possible.

It will be necessary for the OR Tambo Declaration to be adopted formally by the African

Union so that governments in Africa become conscious and committed stakeholders in the

institution of the Ombudsman. This may avoid the situation arising where the Ombudsman

is treated as a pawn by any of the three branches of government in order for a particular

political objective to be obtained

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In 2017, the latest standards intended to strengthen or the protection and strengthening of

mandate were adopted. These are known as the Principles on the Protection and Promotion

of the Ombudsman Institution. They are also referred to as the Venice Principles because

they were adopted by the European Commission for Democracy through Law, which is also

referred to as the Venice Commission. Concerning an Ombudsman’s mandate, the Venice

principles cover prevention and correction of maladministration, and the protection and

promotion of human rights and fundamental freedoms. They also state that following an

investigation, the Ombudsman shall preferably have the power to challenge the

constitutionality of laws and regulation or general and administrative acts. The Venice

principles stress the Ombudsman, deputies and the decision making staff shall be immune

from legal process in respect of activities and words, spoken or written, carried out in their

official capacity for the institution. This they refer to as functional immunity. In order to

underscore this point states are further urged to refrain from taking any action aiming at or

resulting in the suppression of the Ombudsman institution or in any hurdles to its effective

functioning and shall effectively protect it from any such threats.

The Venice Principles also reiterate the importance of an independent Ombudsman

institution. The principles state that the right to complain to the Ombudsman is in addition

to the right of access to justice through the courts. The Venice Principles underscore the fact

that the mandate of the Ombudsman shall cover all general interest and public services

provided to the public whether delivered by the state, by the municipalities, by state bodies

or by private entities. Venice Principles recognise that the Ombudsman should be given an

appropriately high rank, also reflected in the remuneration of the Ombudsman and in the

retirement compensation.

All international standards clearly recognise that the mandate of the Ombudsman needs to

be strengthened. However it is in the practical implementation that the application of the

standards gets mired in the power play between the different arms of government. There is

a need for all the three arms of government to be consulted when the office of the

Ombudsman is being set up in order to avoid the type of discrepancies and interference in

the mandate of the Ombudsman, as have been exhibited in some of the examples discussed

in this paper.

The office of a national Ombudsman is mandated to investigate maladministration in the

executive arm of government. It is therefore important that the office be accorded the

highest level of administrative and legislative protection in order for it to operate as

independently as possible, and with the highest level of integrity. This explains why

international standards require that the office is established under the cover of the

constitution. Although it is funded by the Executive, the office of the Ombudsman

investigates the very same Executive Arm of Government.

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Therefore in order to enable the Ombudsman to operate independently of the Executive,

international standards further stress the importance of the Ombudsman being appointed

and being answerable to the legislative arm of government as well as being removed from

office only by the legislature. Thirdly the judiciary contributes to the office of the

Ombudsman by providing the office with the powers equivalent to the highest independent

office, which is that of a Judge. Thus the conditions of service and remuneration packages

should mirror those of a judge of the High Court, at a minimum. Thus all three arms of

government should contribute in order to strengthen the mandate of the Ombudsman.

When we talk about the State, we mean the whole machinery of government. A

government consists of the three arms of government, i.e. the Executive, the Legislature

and the Judiciary. This is why it is important that all three of these stakeholder arms of

government are educated about the international nature and concept of the Ombudsman.

All three arms of government should thus be consulted and take part in drawing up the

legislative and institutional mandate of the office of the Ombudsman in their jurisdictions,

and their minds should be brought to bear upon the need to uphold the international

standards required to be observed for the establishment of an effective Ombudsman office.

There will also be need to address their minds to this issue of each branch of government

ceding a little of their powers in order to strengthen the mandate of the Ombudsman.