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Feb 02, 2014 Features / Columnists, Peeping Tom
Last week we examined some of the criticisms of the Office of the Ombudsman. This week we continue with this discussion, arguing that instead of an Ombudsman, what would be much better is the development of institutional cultures that allow for greater responsiveness to the public.
It will be recalled that last week it was pointed out by reference to an article by Selwyn Ryan that upon independence, the former colonies adopted a raft of institutions that existed in the developed world, but which were never guaranteed to be effective in the newly independent states.
Also, it was contended that the many institutions that were mimicked are costly to the taxpayers, underutilized, and it would be much better if instead of different persons appointed to head these institutions, a single person could have been appointed. This would result in considerable savings.
One of the reasons, of course, why the Office of the Ombudsman emerged, was because of the increasing complexity of government. Modern government had become increasingly intrusive and its activities had begun to directly impact on larger numbers of persons. Since this increased the risk of persons suffering from the consequences of maladministration and since the normal recourse to judicial settlements was time-consuming and costly, the need arose for an inexpensive and quick means of addressing the grievances of persons, but primarily members of the public, who had suffered in some form or the other from maladministration. The office of the Ombudsman was created to provide this cheap and faster recourse for ordinary citizens.
The problem with this Office is that it has no powers of compulsion and therefore relies on the integrity of public officials to admit to an error, injustice or maladministration, and upon the recommendation of the Ombudsman, to take action to reverse these things. In practice, public officials have found ingenious ways to delay the requests for information, and in any event, the public is not fully familiar with the uses of the Office of the Ombudsman, and this contributes to the limited number of complaints generally received.
Also contributing to the poor number of complaints are the numerous exceptions: that is, the matters from which the Office of the Ombudsman is precluded from investigation. There was a letter in the newspaper recently in which the writer bemoaned the number of exceptions.
These exceptions, however, have merit, and to appreciate why they exist requires an understanding that the Office of the Ombudsman is not expected to be an alternative towards other means of dispute settlement. It also does not replace the courts and therefore cannot investigate matters that are before the Courts awaiting adjudication. It does not also supersede the Constitutional Commissions that appoint public officers, and this is why certain matters which are the remit of these Commissions fall within the exceptions of matters that may be investigated upon by the Office of the Ombudsman
In addition, matters of national security cannot be investigated because this would mean that sensitive material would have to be made public. Nor can certain commercial transactions and personal disputes between individuals be the subject of investigations by the Office.
But perhaps the greatest handicap faced by the Office is the fact that a case may be brought before the Ombudsman, who may prepare a report and take action. But this action does not guarantee a change in institutional culture and therefore the same mistakes can be made again.
This is why one of the strong arguments against an Office of the Ombudsman is the fact that institutional change is not guaranteed. What is needed is for public organizations to have systems that are responsive to the public, and in which every time a complaint is made, certain prescribed protocols immediately kick in.
What is being suggested here is that it is much better for the systems within public administration to work and be held accountable, rather than appointing an Ombudsman for the entire bureaucracy.
Having one Ombudsman does nothing for the development of public offices that are responsive and accountable for how they deal with the public. And until such time as an internal culture develops within governmental organizations, having an Ombudsman will have limited success in changing organizational behaviour.
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