High Court ignored Constitution on the powers and duties of Ombudsman
What you need to know:
- In this case, the court lost sight of the transformative effect of the Constitution and the role of the commission.
- The provisions of the Constitution on this or any other matter cannot be construed or given meaning by first referring to an Act of Parliament, which is made under, and is subordinate to, the Constitution, and then to the Constitution itself.
- The Constitution deliberately avoids the words “fair administrative process” in the caption of Article 47 in reference to “the right to fair administrative action”.
The Commission on Administrative Justice, also known as the Office of the Ombudsman, hosted an annual meeting of African ombudsmen in Nairobi from 18-21 February, 2015.
On 26 February, just about a week after the meeting, the High Court handed down its decision in the case of The Republic of Kenya vs Vision 2030 Delivery Board and The Commission on Administrative Justice, Ex-Parte Eng Judah Abekah.
This decision and the proceedings of the annual meeting stand worlds apart as concerns the nature and role of the Ombudsman in the 21st century.
It is worth drawing on the insights of the relevant aspects of the Constitution, while reflecting on the expert deliberations on judicial review of the Ombudsman in light of comparative developments in the law that seem oblivious to the judgment in the Abekah case.
Replete with checks and balances, the framework of the Constitution makes a normative stand against impunity, including the administrative kind, which is evident in its provisions on fair administrative action in Article 47.
It is important to ensure that the gains made in combating administrative impunity in the Constitution are safeguarded and not undermined.
Quite appropriately, the meeting conceived the Ombudsman as being vital to governance in ensuring fairness. It drew insights into the transformative texture of the Constitution of Kenya as a model, in which the role of the Ombudsman is fundamentally transformed, and distinctively so, from its traditional role.
PROVISIONS OF LAW
The transformative effect of the Constitution is evident in its content and the institutions it creates. In the Abekah case, the court made reference, first to the functions of the commission under the Commission on Administrative Justice Act, then to the Constitution.
With respect, the provisions of the Constitution on this or any other matter cannot be construed or given meaning by first referring to an Act of Parliament, which is made under, and is subordinate to, the Constitution, and then to the Constitution itself.
This is not a chicken and egg scenario. Rather it would be to say that the identity or genetic characteristics of the parents can be deduced or determined in relation to the child, when in fact and in law, the identity or genetic characteristics of the child are deduced or determined in relation to the parents.
In this case, the court lost sight of the transformative effect of the Constitution and the role of the commission. An appreciation of this lies in understanding the inclusion of the right to fair administrative action (Art. 47) in the Bill of Rights. According to Article 19(1), the Bill of Rights is an integral part of Kenya’s democratic state.
There are corresponding institutional arrangements for safeguarding this right, in addition to the court. As the successor of the Kenya National Human Rights and Equality Commission under Article 59(4)(5)(a)(b)(c), the commission is an instrument of governance and an integral part of Kenya’s democratic state.
The commission combines the traditional role of the Ombudsman, but transformatively, is required to take remedial action. The posture of the Constitution is for the commission to take remedial action in the context of ensuring administrative action. Nowhere does it require the commission to “recommend” — that addition is made in the Act.
RIGHT TO FAIR ADMINSTRATION
The Constitution deliberately avoids the words “fair administrative process” in the caption of Article 47 in reference to “the right to fair administrative action”. “The entitlement is a matter of right to fair administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
In this context, the right empowers the commission to ensure that every person in Kenya is a beneficiary of administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.
The Act has to be construed in light of the Constitution, and not the other way round, as the Court did in the Abekah case. Clearly, some of the provisions of the Act reflect the traditional role of the Ombudsman to carry out inquiries, investigations, and improve administrative processes. Other provisions also enable the transformative effect of the Constitution.
This is reflected in the requirement for the commission to report to the National Assembly bi-annually on the specific complaints investigated and the remedial action taken in addressing maladministration.
“Remedial action” relates directly to fair administrative action and the roles specified above under Article 59(1)(h)(i)(k) of the Constitution. The reporting to the National Assembly does not affect the powers of the commission to enforce its decisions.
Where the commission takes remedial action against a public body in order to bring about fair administrative action, the public body in question is required to comply with the action taken or challenge the action. Similarly, the commission may move the court to enforce its action.
In either case, the role of the court is to determine, by judicial review, whether the Ombudsman has the power or jurisdiction to take action. If it is established, as it was in the Abekah case, that the action taken is within the power of the Ombudsman, the modern legal jurisprudence is that the court has to enforce the action of the Ombudsman without opening the merits of the case.
In this regard, the decisions of the commission have to be enforced in view of its mandate over the right to administrative action under the Bill of Rights, its powers to take remedial measures, and on adjudication.
That Mr Abekah had a right to fair administration was completely ignored by the court and the issue turned on the commission as protector. That was a constitutional anomaly.
LEGALLY ENFORCEABLE
This position is reflected in the three decisions in the United Kingdom, where it was held that the decisions of the Ombudsman are legally enforceable by the courts, without opening the matter afresh, where an Ombudsman acts within the scope of his powers.
The rationale is that the Ombudsman scheme provides alternative dispute settlement and lifts pressure from the system of civil justice, standing alongside tribunals and courts.
For instance, in the case of Guy Bailey, decided on 14 August 2013, the County Court fined Mr Bailey £5,000 for contempt for refusing to comply with the decision of the Ombudsman. Between 2013 and 2014, the legal Ombudsman enforced claims totalling over £97,000 in compensation to clients.
In another case, British Banker’s Association v Financial Services Authority/Financial Ombudsman Service [2011] EWHC 999, the High Court dismissed the British Banker’s Association application for judicial review and upheld the decisions of the Financial Services Authority and the Financial Ombudsman Service.
In Ex Parte Bradley and Others v Secretary of State for Pensions [2007] EWHC 242, the High Court decided, among other matters, that the findings of fact made by the Ombudsman were binding on a government minister unless and until they could be shown objectively to be flawed or irrational where there was genuinely fresh evidence.
In the Court of Appeal [2008] All ER (D) 98, it was decided that the decision of the Secretary of State to reject a finding of maladministration by the Ombudsman was irrational or unreasonable. According to the court, it was not sufficient for the Secretary of State to simply reject a finding of maladministration; the decision to reject had to be rational.
REJECT A FINDING
It is instructive to note that Kenya, unlike the UK and Australia, which was referred to in the Abekah case, has a written constitution. Further, unlike Kenya, the UK and the Australian ombudsmen lack jurisdiction to investigate Parliament.
Despite the differences, the case law or jurisprudence cited above is good for courts in the Commonwealth, including Kenya, because of their comparative common law legacy or history.
According to the court in the Abekah case, “the core question was whether a public body can be compelled by way of mandamus to implement the recommendations, findings or reports of the commission.” It missed the substance of the critical issue of the application of enforcing the decision of the commission as was in the Bailey and Banker’s Association cases.
However, even by its chosen approach, it was incumbent upon the court to inquire and determine whether the decision of the Vision 2030 Delivery Board was rational in rejecting the finding of the commission.
The writer is a professor of law at the London School of Economics and the United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons. He was a member of the Committee of Experts that delivered the Constitution of Kenya in 2010.
