Challenges Facing Implementation of Administrative Justice by the Kenyan Ombudsman

Abstract

Although Kenya has enacted a law establishing an Ombudsman institution, nevertheless, the decisions of the said institution remain largely unenforceable. This could be caused by a number of factors including lack of clearly defined legal sanctions applicable to those entities which do not abide by the recommendations of the Ombudsman. Enforcement of Ombudsman’s decisions in the developed countries is quite different from that in developing and less developed countries in that the developed countries have established strong governance structures which ensure that their Ombudsmen’s decisions are implemented as a matter of course based on the practice of moralsuation; the same does not and cannot apply to the developing and less developed countries. Given the weak governance structures in Kenya and its long history of abuse of human rights, the Kenyan state cannot be trusted to ensure compliance with the Ombudsman’s decisions purely on the basis of moralsuation. It is for this reason that that this study proposes solutions to help in addressing the challenge of non-enforceability. These measures include legislative changes aimed at increasing the legal powers of the Ombudsman by making its decisions more effective, enforceable and/or binding. This study reviews the relevant literature and legal frameworks of various jurisdictions within the world legal system and the extent to which governance structures and the law in different jurisdictions support or suppress enforcement of the decisions of the Ombudsman with emphasis on the two broad categorization of the countries as above mentioned. This is achieved through a mixed methodological approach incorporating both doctrinal and historical methodology.