Justice Winston Moore assumes the role of Ombudsman almost a decade after the office has been vacant and largely weakened, and at a time when administrative justice is lacking in our democracy. People are frustrated by delays, discourtesy, and bias, among other things, across the public service and have for too long been denied the services of a resolute public defender.
The Ombudsman is considered one of the essential institutions that a Constitution should possess. On this score, we have been progressive–the Office of an Ombudsman was enshrined in our Constitution in 1966—albeit only on paper.* The profile of the Office has diminished to the point where the majority of citizens have no idea what an Ombudsman does. This means that Justice Moore has to engage the public and establish himself not only as a feature of our Constitution but also a feature of systems of administrative and civil justice. And judging from the lack of public awareness which reduced the impact of his predecessor’s work, it is important that he formulates a public education strategy.
The Constitution establishes that the Ombudsman may investigate any action taken by any department of government or by any other authority or by the President, Ministers, officers or members of such a department or authority. Therefore, the Office serves as an important part of ensuring good governance in our society.
But the Office of the Ombudsman here has been dormant since 2005 and even when it was operational it was underutilised. This could be for several reasons, from the lack of adequate information regarding what the Ombudsman does to doubts about whether an office which is largely without enforcement powers could really be effective in promoting justice.
There is also no public track record of the Office and what it has accomplished in the years it was functional. At the time of writing, it was difficult to access information as it relates to the complaints the last Ombudsman would have investigated and the results of those investigations, which would be critical to building confidence in the Office.
In explaining what the Ombudsman does, it would be fair to say that Justice Moore over the next four years will “right the wrongs” in our society. He is empowered to act as an independent referee who looks at both sides of a dispute and can come up with a fair solution.
The Ombudsman’s office is a mechanism that gives citizens a fair means of resolving problems which may crop up in dealing with the public service — and where necessary holding systems to account. In short, the Ombudsman is offering citizens a form of dispute resolution outside of the courts and also ensures public accountability.
The emphasis is on resolving disputes between citizens and government agencies and the services are available to every citizen. This means that if you have a complaint with a particular government agency and you’re having difficulty resolving it, you could take your complaint to the Ombudsman.
If you are not satisfied with any aspect of administration by nearly every publicly funded organisation in the country, you have a right to an independent, impartial and free investigation of your complaint by the Ombudsman’s Office.
Further, anyone can make a complaint to the Ombudsman. You can complain on your own behalf or for someone else if they are unable to make the complaint.
But as expected, not every complaint is investigated. The Constitution outlines that the Ombudsman may refuse to initiate, or may discontinue, any investigation if it appears to him that:
the complaint relates to action of which the complainant has had knowledge for more than twelve months before the complaint was received by the Ombudsman;
the subject matter of the complaint is trivial;
the complaint is frivolous or vexatious or is not made in good faith; or
the complainant has not a sufficient interest in the subject matter of the complaint.
While there is need for real reforms to be introduced in our administrative justice system—the courts and the law—the Ombudsman provides us with an opportunity to have our complaints of maladministration addressed.
Justice Moore and is staff now has a responsibility to inform the public of the services which are available to them. People would be interested in knowing the kind of matters they could take to his office. For example, would his office investigate police beating and torture?
Would his office investigate corporal punishment administered to a child in one of our schools? Would his office investigate the complaints of prisoners on remand awaiting a hearing? Would his office investigate claims of institutional racism in the public service?
In other jurisdictions, people have gone to the Office of the Ombudsman to complain about abuse of police power, disputes relating to income tax returns, disputes about entitlement to old age and retirement pensions, and about child support payments etc.
In Europe, public defenders holding the Office of Ombudsman are meeting regularly to discuss the duties of government towards citizens. They are examining issues such as whether administrations support the interests of some citizens above others, and if so, how do they as Ombudsmen deal with this reality.
They are also exploring their boundaries and how far they are allowed to go. For example, if an Ombudsman believes that the value system that informs the political choices made, does not sufficiently protect the interests of the citizen, then how far can he or she go in pointing this out. Who is the citizen that an administration talks about looking after, supporting, and including? These are some of the questions they are addressing. These discussions are important, not just for their respective jurisdictions, but societies like ours where successive administrations have been accused of overlooking the interest of a particular group at different periods during our country’s history.
In theory, Justice Moore’s appointment is good news but the important test lies in whether the office can truly champion the rights of aggrieved citizens in our country and help to focus the attention of public officials on the needs of the people they serve.
In practice, Justice Moore and his Office will only be able to function effectively if the current administration invests in the Ombudsman idea and support it beyond the appointment.
Justice Moore’s colleagues in Europe believe that the key to succeeding in their role is the task of keeping the administration honest. During his years on the bench, he was held in high regard by his local colleagues and he built a reputation as a man of integrity. Based on his judicial profile, there is reason to believe that Justice Moore is capable of “righting the wrongs” in our society.
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*Correction: A previous version of this column incorrectly stated that the of Office of the Ombudsman was enshrined in the constitution in 1996. The correct date is 1966.
