By Professor Chaloka Beyani
The Commission on Administrative Justice (Office of the Ombudsman) recently hosted a high level annual meeting of African Ombudsmen in Nairobi from February 18-21 February. On February 26, barely a week later, 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 that judgment.
Replete with checks and balances, the framework of the Constitution makes a normative stand against impunity, including administrative impunity, which is evident in its provisions on fair administrative action in Article 47. The transformative effect of the Constitution is evident in its content and the institutions it creates. In the Abekah case, the Court made references, first to the functions of the Commission under the Commission on Administrative Justice Act (Act) and 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 is 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. The Commission is an instrument of governance and an integral part of Kenya’s democratic state. It combines the traditional role of the Ombudsman, but transformatively, is required to take remedial action [Article 59(1) (h) (i) (k)]. The posture of the Constitution is for the Commission to take remedial action in the context of administrative action. Nowhere does it require the Commission to ‘recommend’- that addition is made in the Act.
The Constitution deliberately avoids the words “fair administrative processes” 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”.
Where the Commission takes remedial action against a public body in order to bring about fair administrative action, the public body in question has 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. If it is established 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 Eng. 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.
This position is reflected in the various 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 their powers. The rationale is that the Ombudsman scheme provides alternative dispute settlement and lifts pressure off the system of civil justice system, standing alongside tribunals and Courts.
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 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 Commission’s findings.