Where is our Ombudsman? - 2
The powers, immunities and privileges accorded to the Office of the Ombudsman by our Constitution appear on first sight to be enormous. But they are subject to what by any yardstick are to be deemed severe limitations.
One such limitation is that the Office is not invested with power or authority to punish injustice or wrongdoing. All the Ombudsman is entitled to do is to make recommendations to the department of Government or authority or body in question as to what remedial measures ought to be taken and the reasons for so recommending. Further, a time may be specified as to when the injustice should be remedied. If at the end of the time specified it is felt that "little or nothing has been done to remedy the stated injustice," the Ombudsman is obligated to make a special report to Parliament on the particular case. Such a report must also be presented where the Ombudsman is of the view that a matter under investigation is of "sufficient public importance".
The Ombudsman v. Ministers of Government
The Ombudsman is also handcuffed by restrictions placed on matters which fall within the portfolio of the Office. In particular, entry into the terrain of Ministers of Government is virtually prohibited. This is captured by Section 111(1) of the Constitution. It prescribes: "In investigating any matter leading to, resulting from or connected with the decision of a Minister, the (Ombudsman) shall not inquire into or question the policy of the Minister in accordance with which the decision was made". In the same vein, the Ombudsman does not have the power to summon a Minister or a Parliamentary Secretary to appear before him. Nor is he or she authorized to compel either of these officials to answer any questions in respect of "any matter" under investigation. Section 115(3) of the Constitution, then, should be of no surprise. It reads: "The (Ombudsman) may not be empowered to summon any witness to produce any Cabinet papers or to give any confidential income tax information."
More than this, the Ombudsman's hand is stayed as to matters concerning corruption and corrupt practices in the public service. He or she is empowered to conduct inquiries into complaints which suggest lack of integrity or corruption of the public service or any department or office in the public service. As well, investigations may be carried out into "any conditions resulting from, or calculated to facilitate or encourage, corruption in the public service". But that is the end of the road. The Ombudsman by virtue of Section 111(2) "shall not undertake any investigation into specific charges of corruption against individuals". In these situations the only course of action available is to report the matter to those on high. Section 111(3) is instructive: "Where in the course of an investigation it appears to the (Ombudsman) that there is evidence of any corrupt act by any public officer or by any person in connection with the public service, he shall report the matter to the appropriate authority with his recommendation as to any further investigation he may consider proper".
It may reasonably be argued, then, that the Office of the Ombudsman makes possible the investigation of a wide variety of matters that suggest maladministration, including impropriety, wrongdoing and injustice by public servants against the citizenry of our country. But the Office lacks the power and authority to do so in respect of persons at the very top of our country's political hierarchy where, from all accounts, impropriety, wrongdoing, injustice and corrupt practices are known to largely reside. And, its capacity to go beyond the stage of inquiry and punish those found to have been perpetrators of injustice is drastically circumscribed. The Ombudsman may identify the sources of injustice and recommend sanctions. But the imposition of recommended sanctions is a matter for the Political Executive. Thus, the appointment of an Ombudsman, in accordance with the provisions of our Constitution, is to be seen as no more than a mere beginning.
After 34 years, No Ombudsman
In these circumstances, we would have expected our political directorate to have long embraced Sections 110 to 115 of the Constitution and appoint an Ombudsman. But that has not been the case. Today, thirty-four years following the proclamation of our Independence Constitution, Dominica is yet to have an Ombudsman. And, among our CARICOM sister-nations, only St. Vincent and the Grenadines which obtained Independence in 1979 has followed Dominica's lead. An Ombudsman is part and parcel of the democratic process in Guyana, Trinidad and Tobago, Barbados, the Bahamas, St. Lucia, Antigua and Barbuda, St. Kitts and Nevis, and Grenada and Cariacou. Interestingly, I was witness last week to an advertisement on Grenadian television in which the Office of the Ombudsman was directing citizens as to its whereabouts. Bermuda, still a colony of Britain, has an Ombudsman. Further, Jamaica has appointed two Ombudsmen: one, a general ombudsman; the other, a Public Utilities Ombudsman. And the Constitution of Jamaica provides for the appointment of yet others.
What this means is that of the governments which have ruled our country since our Independence Constitution was proclaimed none of them has bothered to appoint an Ombudsman. In fact, none has given serious thought to the matter. Not the Labour Party which was in office for six (6) months, between November 1978 and May 1979 and, since February 2000, has been there for another thirteen (13) years. Neither Freedom Party which ruled for fifteen (15) years from 1980 to 1995. Nor the United Workers Party which held power for four and a half years after the fall of Freedom. The Democratic Labour Party Government, from June 1979 to July 1980, was an interim Government set up following the ousting of the Patrick John regime to pave the way for the holding of general elections. It was not expected to go as far as appointing an Ombudsman.
The message is clear. Our country's politicians of whatever political party, despite the showers of rhetoric rained upon an unsuspecting populace at election-time, perceive themselves to be masters, not servants, of the people. The Office of the Ombudsman, by allowing for investigation of complaints made by the ordinary citizen about the behavior of politicians in the exercise of their duties and responsibilities, may be seen as a concrete challenge to that perception. In the event, our politicians regard the appointment of an Ombudsman as an unnecessary evil.
Who is to Blame?
In the final analysis, the problem lies, not with the politicians, but with those persons who have filled the Office of the Presidency since our Constitution was promulgated thirty-four years ago. The selection and appointment of the Ombudsman resides in the unfettered domain of the President. He or she is not required to do so "on the advice", that is to say, on the orders or instructions of the Prime Minister. All that is required is that the President, before making the appointment, consults the Prime Minister as well as the Leader of the Opposition. At the end of the day the judgement call is to be made by the President. More than this. The President, before taking office, swears on oath to abide by the Constitution of the Country. Accordingly, it can legitimately be said that failure to comply with Section 108(2) of the Constitution and appoint an Ombudsman represents a clear dereliction of that Oath. In that respect, we look forward to the conduct of our sitting President!
Copyright (c) William Para Riviere, June 2012.