Public Complaints And The Ombudsman In Kenya

Abstract

Although the Constitution of Kenya establishes an Ombudsman to resolve public complaints, the said office continues to face challenges in so far as fulfilling its constitutional mandate is concerned. This study argues that the reason for the continued challenge; first, is that the role of public complaints resolution has traditionally been the preserve of the judiciary; secondly, the new responsibility of the ombudsman in public complaints resolution is in tension with the judiciary; the third argument is that various statutory restrictions such as scope in investigations and limitation of jurisdiction hinder the Ombudsman’s ability to fulfil its constitutional mandate. The study examines the legislative and institutional framework governing resolution of public complaints and the office of the Ombudsman. To achieve this, the study utilises doctrinal, historical and comparative research methodologies. The study has found that there is friction in exercise of power between quasi-judicial organs such as the ombudsman and the judiciary as exhibited by the supremacy battle and tension thereof; similarly, the Ombudsman is also stifled by its Act more particularly in the framing of its jurisdiction, limitation, powers and function, together with inadequate general empowerment to achieve its constitutional mandate. Key recommendations include amendment of the CAJ Act, cooperation of institutions, upholding of constitutionalism and finality in the decisions of the ombudsman as demonstrated in the South African jurisdiction where courts have pronounced that decisions of the Public Protector are peremptory and not optional.