JUSTICE

Import of ruling on Ombudsman’s work

Decisions of Commission on Administrative Justice are binding on public institutions.

In Summary
  • Since inception, the CAJ has handled more than 600,000 complaints...But it is not just the numbers that matter, there is a story behind each complaint.
  • It cannot be that Kenyans file their complaints with the CAJ and after it makes decisions, the institutions complained against are left to willfully choose what suites them.

The Court of Appeal recently ruled that decisions of the Commission on Administrative Justice (Office of the Ombudsman) are binding on public institutions.

The appeal stemmed from the decision of Justice Weldon Korir where a complainant, Eng Judah Abekah, who had had his matter determined by the commission moved to court to seek compliance. The commission had recommended that Abekah be compensated for unfair treatment by his then employer, Vision 2030 Delivery Secretariat Board.

In his judgment, Justice Korir observed that the commission is not vested with coercive powers over an entity it investigates, and that where an entity fails to comply with its decision, the only remedy is to make a report to the National Assembly.

The landmark decision by Justices Roselyn Nambuye, Patrick Kiage and Agnes Murgor will go a long way in advancing governance by strengthening oversight bodies. Here’s why we think the judgement is of great significance.

Every day, Kenyans of different walks of life walk into the commission offices or write letters to file complaints against various public institutions. Since inception, the commission has handled more than 600,000 complaints (directly and through public entities under performance contracting platform) on issues such as delay, inaction, unfair treatment and administrative injustice, which undermine service delivery in the public sector. But it is not just the numbers that matter, there is a story behind each complaint.

A case in point is a complaint filed by Victor (not his real name), an ex-army officer who became paraplegic arising from neck and spinal injuries sustained in the course of duty. Victor rode an ambulance to the commission to file a complaint against the government for failure to pay his medical pension and settle a court award. His family has been following up the case on his behalf because he has no means to keep engaging ambulance services.

There are many other cases, some more desperate than others, by sick and healthy people who need the commission to have public entities sort them out so they play their role in building the nation, or just live quiet lives with their families. None of them wants to spend days on end or even months begging public officers to do what they are paid to do.

Alex (not his real name), another complainant, had his pension discontinued. He is sickly with a heart condition that has affected his breathing, speech as well as his ability to walk properly.

There are many other cases, some more desperate than others, by sick and healthy people who need the commission to have public entities sort them out so they play their role in building the nation, or just live quiet lives with their families. None of them wants to spend days on end or even months begging public officers to do what they are paid to do.

The commission considers complaints brought it and comes up with decisions for implementation by the relevant public entities. In fact, the constitutive Act requires the commission to report to the National Assembly not only the complaints investigated, but also remedial action taken.

It, therefore, cannot be that Kenyans file their complaints with the commission and after it makes decisions, the institutions complained against are left to willfully choose what suites them.

 

It is instructive to note that the decision of the Court of Appeal is similar to decisions made by South African courts in related matters touching on the Public Protector.

The Constitutional Court of South Africa, in a matter relating to compliance with remedial action in the case of President Zuma’s Nkandla homestead, noted, “If compliance with remedial action taken was optional, then very few culprits, if any at all, would allow it to have any effect. And if it were, by design, never to have a binding effect, then it is incomprehensible just how the Public Protector could ever be effective in what she does and be able to contribute to the strengthening of our constitutional democracy.”

In yet another matter, the Supreme Court of Appeal of South Africa observed that remedial action by the Public Protector should not be ignored and that any aggrieved person or institution dissatisfied with such decision can challenge it in court by way of review application.

Public institutions need to appreciate the role of the commission, and indeed that of oversight bodies, to alleviate the suffering of Kenyans and enhance good governance.