Dear Editor,
I join with others in welcoming the appointment of Justice Winston Moore as Ombudsman. By so doing, the President has ended the violation of the constitution which persisted for many years. The office has been deliberately kept vacant for such a long time, that it may be useful to offer a comment on the matter, and it is not surprising either that many persons would ask, what is an Ombudsman anyhow? And what precisely is he supposed to do? The Guyana Constitution requires the appointment of an Ombudsman by the President after consultation with the Leader of the Opposition (Art 191) for a fixed period of four years.
The approval of the President is required for the Ombudsman to perform the functions of any public office or to engage in any occupation for reward outside his official duties in each case. An ideal situation would be to have an Ombudsman who is severely independent of the executive, maintaining a proper distance from the rulers, taking directions from no one and answerable only to the National Assembly. It would be a good thing if the Ombudsman did not have the need to engage in any occupation outside his official duties and therefore did not have the need to request favours or approval of the President.
A revised constitution ought to expressly prohibit any employment outside of official duties and thereby obviate the necessity of such approval from the politicians, or anyone else for that matter for anything.
Articles 192 (1) and 192 (2) describe the work and functions of the Ombudsman in summary, as follows:-
“To investigate any action taken in exercise of the administrative functions of any Government Department or any specified authorities, or by the President, Ministers or their officers and members where
“a) a complaint is made by a person or groups of persons alleging injustice suffered in consequence of a faulty in administration
“b) the President or Minister or a Member of the National Assembly requests it on the ground that a person, or body of persons has or may have sustained such injustice or
“c) where the Ombudsman considers it necessary for him to do so on the ground stated above.”
Not surprisingly, this power to investigate complaints is restricted and there are many exceptions as set out in articles 192(2) and 193.
He is prohibited from investigating action
“a) Where the complainant has or had
(i) remedy by way of proceedings in court but may in certain particular circumstances still investigate, including on matters relating to the protection of fundamental rights and freedoms
(ii) a right of appeal, reference or review to an independent and impartial tribunal other than a court
“b) dealing with relations between the Government and any other Government or international organization
“c) taken to protect state security or to investigate crime and passport issues relating thereto
“d) concerning the commencement or conduct of civil or criminal courts proceedings
“e) concerning public service or presidential or ministerial appointments or taken about holders or former holders of such offices
“f) concerning orders or directions to the disciplined forces or members
“g) concerning the prerogative of mercy
“h) presidential grant of honours, awards or privileges
“i) concerning contractual/commercial dealings with the public except deals approved by lawfully established tender boards, procurement commissions and similar authorities
“j) taken outside of Guyana by representatives of Guyana or a foreign country
“k) whereby the constitution prohibits enquiry
“l) of the Service Commissions, Public Service Appellate Tribunal
“m) of agencies as prescribed by Parliament”
This is quite an impressive laundry list of territory where the Ombudsman cannot venture.
Also under Art 192 (4) the Ombudsman may refuse to initiate or may discontinue an investigation if
“a) the facts of the complaint are more than 12 months old before filing or
“b) the complaint is trivial, frivolous, vexatious and not made in good faith
“c) the complainant has an insufficient interest in the matter”.
The Ombudsman is required by Art 194 to make recommendations for action by the defaulting department if he concludes that the complainant has sustained injustice as a result of a fault in administration or to inform the aggrieved party of his opinion as to whether there has been injustice or not. Where his recommendation has not been carried out the Ombudsman lays before the National Assembly a special report in addition to his annual report.
It is clear from all of the above, that notwithstanding great expectations the Ombudsman merely investigates complaints of injustice arising from administrative action of a narrowly defined and restricted list of agencies and subject matter which cannot be generally handed by the court system or other non-court appeal/review process.
“In certain particular circumstances, he may still entertain a complaint even if there was recourse to the court system ‒ Art 192 (3) b (i) and 192 (3) b (ii). There are very few issues of injustice suffered as a result of administrative action or inaction that cannot be taken before a court or tribunal for adjudication, so this removes from the investigative work of the Ombudsman a great many cases of injustice suffered by persons at the hands of the bureaucracy and politicians.
Even where a matter does reach the Ombudsman his only remedy is to write a recommendation or a report. This hardly scares the bureaucracy or politician with changing their ways and still does not deal with the injustice suffered adequately, especially if the recommendations are ignored, although the highlighting of the problem in a report may be some sort of consolation.
The National Assembly needs to put more teeth into the findings of the Ombudsman so that the offenders are made to account for their misbehaviour and are sanctioned appropriately, and the injured party is assured of real not imagined justice as a result of filing a complaint.
Then there is the requirement that the complainant must be personally aggrieved at the action and must have “sustained injustice” (Art 192 2(a)), and must have a “sufficient” interest in the subject matter of the complaint ((Art 192 (4) (d)).
All of this appears to be far too restrictive. So that any citizen aggrieved at the most egregious action of a minister in granting 4 million acres of mining and forestry territory to just 2 foreign companies may not approach the Ombudsman because of the absence of personal injustice suffered.
Similarly, the give-away of national assets, sole source procurement, TV and broadcast licences favouritism, nepotism and corruption throughout the system would escape the attention of the Ombudsman in all probability. This needs to be seriously reviewed. Then there is the 12-month rule which restricts access to the Ombudsman. This could be a real problem because there has not been an Ombudsman for years.
But the appointment of the Ombudsman is still welcome because half a loaf is better than nothing at all, but in order to make this important office more effective the National Assembly must provide it with sufficient funding to do its work to hire professional investigators to dig deep into complaints and to prescribe serious sanctions and penalties after affording all suspected wrongdoers the right to be heard.
It is not enough to just make recommendations with reprints. We have many reports gathering dust on shelves.
The National Assembly must seriously review the constitution to review the obstacles which prevent access to the Ombudsman from investigating injustice, lawlessness and corruption all over the place.
Finally the power of the President and ministers to request the Ombudsman to investigate a matter should be removed since they already have access to and control of various other agencies that can carry out an investigation. In all probability many complaints may have to do with the actions of their agencies and their officers, and by allowing them to file requests for investigators may crowd out the legitimate complaints of citizens.
The National Assembly does need to strengthen the office of the Ombudsman, whom we wish well in his work.
Yours faithfully,
Ramon Gaskin
