Tuesday, February 4, 2014

When The Ombudsman's Office Fails: The Case of Malawi

...Govt institutions snub determinations by Ombudsman

For 12 years, interdicted primary school teacher Emmanuel Samson Mtambalika from Dedza has tried different methods of arbitration before finally settling to seek justice at the Ombudsman.

His crime? He was fired in 2008 for not reporting for his Ministry of Education duties for two months, ostensibly because he travelled to the village to take care of his ailing father.

“I had bid my immediate supervisor bye but, somehow, he forgot to report to his bosses,” Mtambalika said.

His regret is that he subjected himself to the terms of the employer
on principles which he never examined properly. He alleges that his bosses were
later to use the same to victimise him.

He is one of the people who have faith in the Office of the Ombudsman. “I believe one day, justice will be done and I will go back to my teaching post.”

Constitutional body

The Office of the Ombudsman is a constitutional body, established by the 1994 Constitution of Malawi. It became "operational" in 1996, and may investigate “cases where it is alleged that any person has suffered injustice, and it does not appear that there is any remedy reasonably available by way of proceeding in the court or by way of appeal from a court or where there is no other practicable remedy".

While public servants continue to flock to the Ombudsman’s office for remedial action, legal commentators have warned that the success rate of determinations made by this institution will continue to be low because dissatisfied individuals cannot refer defied determinations to the courts.

The Ombudsman has been struggling to enforce its determinations, with a number of government ministries competing for positions on the non-compliance list.

Justice Link executive director, Justin Dzonzi, said the issue of determinations is compounded by the fact that dissatisfied individuals may not contest delays to honour determinations made in their favour in the formal justice system.

“The major weakness with the Office of the Ombudsman is that determinations do not have the force of the law; a determination is not like a court judgement,” Dzonzi said.

Dzonzi said the only path the Ombudsman could take to make sure that public institutions are honouring determinations is to report them to Parliament.

He said the tendency to defy determinations had “watered down” the
Ombudsman’s role in society.

Describing the practice of defying determinations as a violation of human rights, Dzonzi said failure to honour determinations violated the affected individuals’ right to access administrative justice.

Lawyer Joseph Kamkwasi said the government was violating the Constitution by not honouring the determinations , saying the office was “constitutionally set up.”

Raping constitution

“However, the problem with the Constitution is that it does not spell out punishment to be meted out to those who defy determinations. Otherwise, the government is raping the very Constitution it claims to uphold,” Kamkwasi said.

He accused politicians of deliberately violating the Constitutions because they know that they would not be taken to task for doing so. He said Malawi needed to emulate the example of Pakistan, where the Prime Minister was recently taken to court on contempt of court charges.

“But the main problem is that some of the cases that are referred to the Ombudsman’s office are Statute Barred, meaning that the timeframe within which they would have been referred to court has elapsed.

“For example, we all know that defamation cases can only be taken to court within six years of their occurrence, after which such cases become Statute Barred,” he said.

“This is the case with some of the cases that are referred to the Ombudsman for determination. Most of them took place during the time of the one party regime, and this limits the options available to affected individuals,” Kamkwasi said.

Kamkwasi urges the government to respect the determinations, saying it did not make sense for the government to arrest people on charges of violating provisions of the Constitution, only for it to be in the forefront disregarding the same.

Ombudsman Tujilane Chizumila told journalists in June last year that a number of government departments were not honouring the determinations.

By June last year, various government ministries had not complied with 252 determinations. Of these, the Ministry of Education, Science and Technology had defied 44; 32 were defied by the Ministry of Local Government and Rural Development; 16 cases by the Ministry of health; nine cases by the Ministry of Natural Resources; while 24 were disregarded by the Malawi Police Service, among others.

An appraisal of the Office of the Ombudsman in Malawi commissioned by
the Royal Norwegian Embassy and carried out by Bård A. Andreassen (UiO) and Thor Oftedal and published in Norad collected reviews 5/2007 concluded that the Office is an important governance institution in terms of enhancing a public awareness about the misuse of public office.

It said the office opened about 500-600 cases every year, and had reduced the backlog of cases by about 400 in 2006.

Said part of the report: “ The office grapples with significant institutional weaknesses, which need to be resolved.”

The report added that external aid will not alone resolve these weaknesses.

“Key challenges are enhancing financial control and introduce transparent rules for management and strategic/cost-efficient use of resources. Financial commitment from the Malawi Government is essential to achieving long term financial sustainability; the Office should focus on producing and improving the system of case reporting statistics that reflect the case load, processing and conclusion of cases on a continuous basis”.

Among other donors, Office of the Ombudsman has received funding from
Norway and Sweden since year 2000.

Malawi is, however, not the only African country facing problems in
enforcing the Ombudsman’s determinations.

A paper entitled ‘The Ombudsman Phenomenon in African States Public Services’ written by Dr.Mukoro Akpomuvire of the Department of Local Government Studies, Obafemi Awolowo University, Nigeria, indicates that “The office of the ombudsman in the public service of African States, has over the years been wobbling in its performance”.

“The reasons being largely as a result of over-centralization of government, bureaucratisation and the unwillingness of government to become truly democratic. The resultant effect has been that many citizens in African States cannot meaningfully seek redress against maladministration nor can they complain about poor governance and
services delivery,” writes Akpomuvire.

He proposes that public servants in African states should be perceived
as existing to help citizens and not to make their lives difficult.

He also says the Ombudsman’s office needs to be strengthened so that all
the tenets of a credible public service would be seen to be present and working to the advantage of all, developments that would help put a check on government activities in the interest of the citizens, and thus help to address the problems of human rights abuses, lack of accountability and the absence of good governance.

The number of countries with ombudsman institutions in sub-Sahara Africa
increased from six (Tanzania, Ghana, Zambia, Sudan, Nigeria and Zimbabwe) in the late 1980s to about a dozen in 1995, with Malawi, Namibia, Senegal, and South Africa among the newcomers.

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