An Overview of the History and Functions of

An Overview of the History and Functions of the Commission 2015

Scope History and Establishment of the Ombudsman in Kenya Functions and powers of the Commission Redress Mechanisms 3/17/2018

Understanding the Ombudsman 3/17/2018

Understanding the Ombudsman 3/17/2018

History of the Ombudsman The term ‘Ombudsman’ is a Swedish word meaning ‘Agent’ or ‘Representative of the People’ First established in Sweden 1809 as a representative of Parliament to ensure the observance of the law by government officials. In Kenya, it can be traced to 1971 when the Public Service Structure and Remuneration Commission, commonly known as the Ndegwa Commission, recommended that the office be established. KACC Reports, Vision 2030 & Agenda IV Establishment of the Public Complaints Standing Committee in 2007 and later the Commission on Administrative Justice in September 2011 3/17/2018

Establishment Established under Article 59(4) of the Constitution and the Commission on Administrative Justice Act, 2011. Is a Commission within the meaning of Chapter 15 of the Constitution and has the status and powers of a Commission under that Chapter. Comprises three Commissioners and a Secretariat Other sister Commissions include the Kenya National Commission on Human Rights and the National Gender and Equality Commission 3/17/2018

Mandate v Covers all state and public offices and officers, at the National and County Governments. v Action upon receipt of a complaint or on own initiative v Mandate includes the traditional roles of the ombudsman and unique additional functions. 3/17/2018

Maladministration 3/17/2018

Maladministration 3/17/2018

Maladministration 3/17/2018

1. Maladministration Means bad or improper administration or failure by a public agency to effectively perform its functions. Includes delay, inaction, inefficiency, ineptitude, discourtesy, incompetence and unresponsiveness. § Delay in issuance of registration documents, payment of retirement dues & hearing matters § Disappearance of files § Failure by police to act on reports 3/17/2018

Maladministration Complaints Handling (109, 224 received out of which 83, 457 resolved since 2012) - Complaints of delay in service delivery such as retirement benefits and determination of cases in court and disciplinary matters - Complaint of failure to issue vital documents (National IDs, birth & death certificates, passports e. t. c. - Flagrant disobedience of court orders by public institutions - Inaction, discourtesy & inefficiency Investigations - Machakos GK Main Prison - NSSF Tassia Infrastructure II Project - Systemic investigations into issuance of vital documents 3/17/2018

2. Administrative Injustice Inquire into allegations of administrative injustice, which includes an act, or decisions carried out in the Public Service or a failure to act when necessary. Art. 47 – Right to Fair Administrative Action § § § Failure to follow procedure in dismissal of staff Failure to comply with the rules of natural justice Failure to give notice in eviction or acquisition of private property 3/17/2018

3. Misconduct and Integrity Investigation of improper conduct, abuse of power and misbehaviour in the Public Service. Complementary mandate to ensure compliance with the integrity requirements in the law by public Officers. § Flagrant disobedience of Court Orders § Corruption § Vetting of Public Officers – Police and Judicial Officers 3/17/2018

Leadership and Integrity 3/17/2018

4. Awareness Creation on Administrative Justice - County Visits – 30 Counties Visited - Media Advocacy – Mainstream and Vernacular Stations - ASK Shows - Social Media Platform – Twitter and Facebook - Ombudsman Committees - IEC Materials 3/17/2018

6. Advisory Opinions and Proposals Advisory Opinions or Proposals on improvement of public administration such as legal, policy or administrative reforms. § § § Advisory on Appointment to NLC, TSC and KNCHR Advisory on Spending by Counties on Foreign Trips Advisory on the relationship among the Arms of Government Advisory on the Presidential Directive on HIV/AIDS Advisory Opinion on the Proposed Restructuring of EACC Advisory Opinion Boundary Disputes between County Governments 3/17/2018

7. Training of Public Institutions and Performance Contracting Training on effective methods of handling complaints, and setup complaints handling infrastructure. Performance contracting. § Over 8, 000 public officers trained § Assessment and Certification of over 230 Public Institutions. q Process Audits – To assess the standards of service delivery in public institutions 3/17/2018

8. Alternative Dispute Resolution Methods Promotion of ADR through mediation, conciliation or negotiation on matters affecting public administration. §Mediation involving State Organs §Mediation involving complainants and public institutions 3/17/2018

Public Interest Litigation on matters of public interest Ø Matter relating to the Supreme Court Act & Rules Ø Matter relating to non payment of court award to a police torture victim Ø Matter on the qualification of an MP (Pending) Ø Matter on the Gender Rule Ø Matter on the dispute between the Judicial Service Commission & National Assembly 3/17/2018

10. Special Interests Ensuring compliance with minority and marginalized groups rights in context of public service. 3/17/2018

12. Promotion of Constitutionalism Protection of the sovereignty of the people, ensuring observance of the principles of democracy and the constitutional values. Joint Activities: § Chairs’ Forum § National Council for the Administration of Justice Promotion of the rule of law: § Election Monitoring and Observation § Huduma Ombudsman Awards (Reward System) 3/17/2018

Promotion of Constitutionalism 3/17/2018

Powers of the Commission The Commission has powers of a court of law and includes: Issue summons Require that statements be given under oath Compel production of documents Conduct searches and seizures of documents with court orders Interview any person on administrative justice Obtain relevant information from any person Adjudicate on matters relating to administrative justice 3/17/2018

Limitation of Jurisdiction Matters pending before the Courts or Tribunals Matters against private persons Criminal offences Proceedings or a decision of the Cabinet Grant of Honours or Awards by the President Matters relating to international relations Matters for which there is a right of appeal or other legal remedies Matters under lawful investigation by another body 3/17/2018

Redress by the Commission The Commission can take a number of actions after investigations or inquiry. These include: • Adjudication • Determination • Compensation or other remedy • Reporting to Parliament on remedial action taken 3/17/2018

Accountability 1. Public 2. Parliament 3. President 4. Judicial Oversight 5. Oversight by other Constitutional Commissions and Independent Offices 3/17/2018