Work of the Ombudsman in promoting good governance, transparency, accountability |23 March 2020
Mrs Tirant-Gherardi
In his State-of-the-nation address last month President Danny Faure highlighted that the work of the Office of the Ombudsman is contributing to the process of increasing good governance, transparency and accountability and that government is going to act on all the recommendations presented to him in its report.
Through an overview of the work of the Ombudsman as highlighted in its annual report for 2019, Seychelles NATION touches on some aspects that place emphasis on the said process.
The Office of the Ombudsman
The Office of the Ombudsman was first created here in 1993 to provide the citizens of Seychelles with a forum in which to address issues of maladministration, good governance, human rights violations, fraud and corruption within the public service.
Over the years members of the public have also sought recourse from the Office of the Ombudsman for different personal grievances and complaints. These have all been duly assessed and where necessary directed to the appropriate organisations for action.
Today, parts of the Office of the Ombudsman mandate have been transferred to more dedicated statutory institutions, such as the Seychelles Human Rights Commission and the Anti-Corruption Commission, with much wider powers to deal with violations of the fundamental rights enshrined in Chapter III of the Constitution as well as the corruption agenda.
But nevertheless the constitutional mandate of the Ombudsman remains unchanged and still provides for instances of fraud and corruption and human rights violations by public officers to be dealt with by this Office.
Nichole Tirant-Ghérardi is the current Ombudsman after being sworn into office on March 30, 2017 replacing outgoing Ombudsman Dora Zatte.
The two previous Ombudsmen were Judge Bernardin Renaud who led the office from its creation in 1993 until Judge Gustave Dodin took over some years later.
The Office of the Ombudsman operates from physical premises in Suite 306, Aarti Chambers at Mont Fleuri since 1993. The office is well-placed on the Mont Fleuri road, opposite Seychelles Hospital, the Botanical Gardens and key ministries of education, foreign affairs and tourism and is well served by public transport, making it readily accessible to citizens. Since July 2018 additional office space has been taken in Suite 206 on the second floor of the same Aarti Chambers with direct street level access in order to address the issue of access for physically challenged complainants unable to climb stairs to the third floor offices with no elevators.
Complaints received by the Office of the Ombudsman
In the report Mrs Tirant-Ghérardi affirms that she continues to consider each complaint submitted to her office on its merits and where, as is often the case, elements of maladministration are noted in addition to the elements of fraud and corruption or a human rights violation, her office has proceeded with its enquiry into the perceived maladministration and referred the other aspects to the relevant institution.
She noted that two cases of possible corruption have been referred to the ACCS and three have been referred to the HRC, although it is too early to report any outcome at this juncture.
But is the Ombudsman satisfied that the work she has done since her appointment has changed the way people use and view the Office of the Ombudsman?
“We continue to receive a lot of complaints of all kinds from a very wide range of people. There has also been some change in expectations of people who come to the office. Many think the office is capable of fixing every type of problem they encounter and too many make it their first port of call. So no, overall, I am not satisfied with what we have achieved this far. There is always room for improvement. My wish is to be able to concentrate on the types of complaints that I can really make a difference to,” Mrs Tirant-Ghérardi points out.
Does the Ombudsman feel people are really using the office to the maximum and as it should be used?
“There are lots of complaints out there that are not coming to the office and it is my belief they should.
That said, I don't have to receive a complaint from a citizen to act on an issue. By becoming aware of a problem through the press or through other means, I can launch an own motion enquiry into the matter. I would really love to do more of this type of work since these are often the actions that are really significant and more deserving of address. The reason why I often hesitate or don't proceed as I would wish to with own motion enquiries is because these enquiries call for in-depth investigations of a more specialised nature and frankly, right now, the office does not have the expertise and human resources required to deliver,” Mrs Tirant-Ghérardi explains.
Dealing with complaints
Setting up internal complaints mechanisms
The fundamental purpose of the public service is to serve the public. As servants of the public, a good public sector service must be economical, efficient, effective, fair, impartial, prudent, responsive and transparent in all their dealings with citizens. The citizens and general public have a right to expect a quality service at all times.
Capturing and addressing the grievances of members of the public at source will help channel the complaint and address it more directly both for the complainant and as part of the quality control exercise of the public authority. Complaints’ mechanisms would give aggrieved members of the public a first port of call in seeking remedies for their grievances.
Additionally, it would assist the Ombudsman in conflict resolution since complainants could be referred back to such mechanisms in the first instance. Setting up such complaints offices is therefore fundamental to any long term initiative to improve service and maintain a high standard of service delivery.
Mrs Tirant-Gherardi said she made several general recommendations in her last report addressing the need to set up fully operational complaints’ handling systems to deal with internal matters. Again in 2019, she observed that many public authorities continue to fail to deal effectively with in-house complaints by members of the public. Complaints procedures are either non-existent or not followed or only partially followed by both the general public and the public service providers.
The recommendations she made in her 2018 activity report include; that all public authorities (ministries, departments, agencies and state-owned enterprises) should set up effective internal customer complaints handling mechanisms where these do not already exist. In this age of the internet and social media, she noted that many public authorities have websites and a social media presence but lack any engagement of the public in respect to resolving issues and complaints about their services. The success of such mechanisms in making a difference will depend on how well it is marketed so that the public is fully aware of its existence.
Using the outcome of the complaints review to improve services
By setting up effective mechanisms and dealing with grievances and complaints from those who use their services, public authorities will be able to determine what, if anything, may have gone wrong in their service delivery and use this to satisfy not only the complainant but also to ensure it does not happen again. This is the essence of good public service – the process by which learning from our mistakes will have real impact and make a lasting difference in our efforts to create that effective, fair, impartial, prudent, responsive and transparent public sector to which we all aspire. It lies at the heart of the Ombudsman’s constitutional obligation in the Third Republic.
Activities of the Office of the Ombudsman
Case work
A greater part of time and resources is dedicated to enquiries into allegations lodged with the office by members of the public. In 2019, the office registered a total of 179 complaints. A large number of complaints received were either premature (75), where the complainant had not exhausted available avenues for seeking remedy, or ‘outside remit’ (66) where the matter falls within one of the exclusions contained in Paragraph 2 of Schedule 5 or is outside the jurisdiction of the Ombudsman because the complaint involves actions between private persons or institutions.
In the premature cases, the complainants were advised of the available options open to them and the office prepared referral letters for them to ease their access to those services. It is to ensure that these referrals are properly transmitted and that the Ombudsman requires accurate details of the complaints handling offices in all public authorities.
Out of the 38 complaints retained by the office in 2019, 11 were closed upon completion and 27 remain pending.
As in preceding years, Mrs Tirant-Ghérardi said she has noted systemic issues emerging from a general overview of the complaints where there is an inter-relationship between the subject matter of the complaint or where the same institution is involved. Several recorded complaints in 2019 have involved the issue of Gainful Occupation Permits as well as the administration of the Employment Act. These complaints will be looked at in greater detail in 2020.
In an effort to improve efficiency and efficacy in such enquiries which demand more time and greater involvement, the Office of the Ombudsman is developing its own process for consolidating such cases to deal with the primary cause of the dysfunction rather than focus on the individual cases. Mrs Tirant-Ghérardi said she believes that it is in addressing this type of consolidated case that the Ombudsman can have the most positive impact on addressing administrative weaknesses across the public sector.
Statistics for 2019
The statistics for complaints registered in the Office of the Ombudsman in 2019 are organised according to month and subject matter respectively.
Case Management System – Mrs Tirant-Gherardi recognises that there is room for improvement in the collection and treatment of statistics. She noted that one of her office’s major challenges currently is the absence of a case management system which could simplify the task and guarantee more reliable statistics. In view of the high cost of purchase of such a system, the office is exploring the possibility of obtaining assistance to set up the system and train staff to manage it through its membership of international ombudsman organisations. A project application is being drawn up for submission to possible donors.
Advice & assistance
Ombudsman not a legal aid office
All services provided by the Ombudsman are free. Perhaps as a direct consequence of this, the Ombudsman continues to be solicited for legal advice; a practice which could also be related to the fact that all Ombudsman, since the post’s inception in 1993, have been former or practicing attorneys-at-law. Many of the 66 ‘outside remit’ complaints involve such requests. Mrs Tirant-Gherardi remarked that while she has accommodated some of these where she felt it necessary, it is not within the mandate of this office and will be discontinued altogether in order to avoid duplicating or interfering with the work of members of the Seychelles Bar.
Collaboration with the Bar Association
She said it is now standard practice for the Office of the Ombudsman to refer these complainants to a lawyer of its choice for legal advice or further legal action. She pointed out that to guarantee objectivity and transparency in this process, the Ombudsman will every year require from the Seychelles Bar Association an updated database of all practicing attorneys and their fields of specialisation where applicable.
Ombudsman takes complaints as last resort – The Constitution requires that before investigating a complaint involving an action taken by a public authority or officer that has resulted in a violation of rights or harsh or oppressive treatment, the Ombudsman must be satisfied that the complainant does not have other remedies available to him under the Constitution or under any other law. In line with this constitutional requirement, the office has set up an internal assessment process whereby all complainants are advised of any other steps they can or should take in seeking redress for the substance of their complaints. This procedure now includes referral letters which the complainant will present to the relevant complaints office in the public service institution where he or she will follow a specified avenue for redress. It is only where this fails that the Ombudsman will take up the complaint.
Making referrals work – However, for this referral process to work well, it also requires direct cooperation of all public offices and state-owned enterprises since they must have their own internal complaints’ handling systems and procedures to deal with complaints from members of the public who use their services. It is also essential that these procedures are known to the public and to the office. This remains an area that requires greater attention throughout the public service as not all ministries and departments have complaints’ handling mechanisms in place and even those that claim to have them do not always appear to make full and proper use of them.
As part of its own procedural development, the Ombudsman has drawn up complaints forms designed to capture the maximum information to be used in data collection. Mrs Tirant-Gherardi noted that where it deems necessary, the Office of the Ombudsman assists complainants in filling in the forms. The office also makes telephone calls and enquiries to government offices to ascertain the procedures and requirements to which a complainant must adhere in order to invoke the redress or relief they seek from a public authority.
Complaint to the Ombudsman does not stop prescription running – It is important to note that any matter being investigated by the Ombudsman does not currently enjoy the benefit of a break in prescription. In fact, as the Ombudsman is not empowered to award compensation or damages, Mrs Tirant-Gherardi said she has adopted the thumb rule of advising any complainant seeking compensation for any wrongful action of a public authority to ensure that any civil suit is filed within the legal time limits set out in the Civil Code of Seychelles. This is generally five years for any breach of contract and between 10 and 20 years in cases involving title to land. Additionally, the current Constitutional Court Rules allow only three months in which to file a petition alleging a violation of a fundamental human right before the Constitutional Court.
While a complainant could file legal action before the courts and the Ombudsman investigates the subject matter of the complaint, such process is not without its own difficulties, since it can also create confusion in the minds of some parties. Furthermore, depending on the wording in the plaint, the Ombudsman may have to stop further enquiry into the complaint should the matter be made sub judice (under judicial consideration in court).
To address this anomaly, it is recommended that consideration be given to amending the relevant laws to include the time of investigation by the Office of the Ombudsman as stopping prescription in civil matters, especially since the office may play a mediating role in the dispute which could resolve the conflict and benefit all parties including the legal system in the longer term.
Mediation: No direct mandate to mediate - While the mandate of the Ombudsman as contained in Schedule 5 of the Constitution does not specifically provide for the role of mediator and mediation, the modern trend across many jurisdictions shows a departure from the traditional role of investigating complaints, drawing conclusions and making recommendations towards other forms of alternative dispute resolution between the parties. In fact, the Ombudsman is known as a mediator in French-speaking jurisdictions and has a traditional task of mediation.
Ombudsman should be given role of mediator – Giving the Ombudsman a role of mediator may be the only practical way to resolve grievances in some instances. Hence, it is proposed that the Executive and the Legislature consider revising the existing legal framework governing the Ombudsman’s mandate to provide directly for mediation in addition to the traditional investigative and quasi-judicial tasks of its office.
At the end of 2018 into the start of 2019 the Office of the Ombudsman was invited along with other constitutional bodies and national institutions to comment on proposals for the new Government House to be built at Ile du Port by Indian aid. While this Office expressed no adverse opinion on the proposal, it is noteworthy that a move to what it considers the out-of-town area which is currently not on a main public transport axis could negatively impact the current ease of access to the Office of the Ombudsman enjoyed by the general public, especially for people from the southern districts of Mahé.
Activities & events
Outreach programmes – Bringing the services closer to the population is a primary aim of the Office of the Ombudsman’s outreach programme. The programme involves facilitating access to the services through open ‘clinics’ for residents of Praslin and La Digue. However, primarily because of staff limitations, the office was unable to organise any day trips to Praslin or La Digue in 2019. It envisages at least one trip in the course of 2020.
Website – Work to create and launch a dedicated website suffered several setbacks in 2019 due to the lack of in-house technical staff capable of working on the project. Mrs Tirant-Gherardi says she plans to seek assistance from the Ombudsman’s partner institutions in the course of 2020 to upgrade the work done this far. Meanwhile, the office has created a Facebook page which it is using for information purposes.
Public education and promotion of the Ombudsman’s role
Educating the public – Again in 2019 statistics disclose that over half of the complaints received by the Office are not within the remit of the Office or are premature. Paragraph 1(3)(d) of Schedule 5 of the Constitution provides that the Ombudsman shall not investigate a complaint where the complainant has a remedy under the Constitution by way of appeal, objection, or review on merits and the complainant has not exhausted the remedy, unless the Ombudsman is of the view that it would have been unreasonable in the particular circumstances to expect the complainant to exhaust the remedy.
Applying this restriction, the Office does require that complainants first address their complaints to the public authority to give the latter the opportunity to respond and offer redress before taking up the matter. Additionally, many complaints involve private individuals or entities and do not fall under the jurisdiction of this Office.
Once again the conclusion drawn from this observation is that the public remains largely ignorant of the role and mandate of the Ombudsman.
Messages & Social Media – A more focused and specialised outreach programme is needed to fully educate the general public on the Ombudsman’s mandate and work. However, in the absence of dedicated staff, this has not been possible. Meanwhile, the office has done limited work on an outreach programme, making full use of the more cost-effective measures available to reach out to the public. The office started a Facebook page and throughout 2019 made use of the complicity of the national media by issuing messages and statements on the occasion of national and international days dedicated to areas that fall within the scope of its work.
Information leaflets – The office also designed and printed an information leaflet outlining the work of the Ombudsman and its plans for 2020 including the design and publication of pamphlets and posters which will be distributed for posting in schools and other public places and offices. The Ombudsman also plans to hold talks in schools and other educational establishments.
Good governance & public accountability
The central tenet of the work of the Ombudsman is to act as a ‘quality controller’ of the public services administered by public officers who implement government policies through the basic functions of government.
Public officers make decisions and determinations in the course of delivering services relating to defending the country and safeguarding law and order; collecting revenue through taxation; regulating the economy; providing welfare and certain economic services; protecting individuals; and developing human and physical resources. They are expected to make those decisions and determinations so in a fair and non-oppressive manner for the benefit of members of the public.
The citizen will turn to the Ombudsman when that public officer’s decision or determination is or is seen to be unfair and oppressive. By checking those allegations of maladministration and enquiring into the decision-making process, the Ombudsman can determine how the decision was made, and consequently make recommendations that target an improved service and, more importantly, help prevent similar occurrences in the future.
Public accountability and good governance are ensured only if all parties draw and learn from their errors. This remains the fundamental principle behind the work of the Ombudsman for without it, there is no way this Office can make a real difference.
In the course of 2019, the Ombudsman noted several instances where public authorities have rejected her recommendations or have counter-recommended that she reviews her findings.
Follow up action – “Noting the lack of support from some public bodies and acknowledging that accepting and following up on recommendations emerging from ombudsman enquiries is already a matter for concern, I have resolved in 2020 that immediately after deadlines have passed, the Office will draw the attention of both the Executive and the Legislature to the report and seek their support in securing greater compliance with the recommendations. There is also an urgent need to build credible relationships with all public bodies and ensure that our investigations remain thorough, systematic and fair so as to not only reassure the general public but also instill more trust in the public bodies by either validating their work or by providing constructive feedback on how to improve. I draw from this, the need to increase the intensity of our advocacy through engaging public opinion, using the media and social media and producing follow-up reports wherever public bodies fail to see the value of working collaboratively, refuse to accept recommendations, claim to accept recommendations that never materialise, or simply fail to take any action and show a lack of sincere efforts to accept them.”
But does the Ombudsman feels that through its outreach programme her office has convinced more people to use this platform to air their concerns and grievances and if not how is she stepping or planning to step that up ?
“I definitely feel that many more people know of the Ombudsman's Office today even if they may still be a little confused as to what it can do for their immediate problem. That is what needs to be addressed in the outreach programme, so that the people can see exactly how their problem can be addressed by the Ombudsman and what they can expect as outcomes. What needs more focus as I continue into the fourth year of my mandate is how to share with a wider audience the results of many of these investigations which technically always have longer term results. By getting the public authorities to behave and act differently, my work makes for improvement in the service delivery to the general public. That is already happening today but with no link back to or recognition of the work done by the office. That lack of visibility also needs to be addressed. One way to do it is to talk to the press, but I also believe that I need to put individual case reports out into the public domain – something I have not been doing up to now,” Mrs Tirant-Gherardi explains.
How as Ombudsman would you say the work your office is doing contribute towards encouraging good governance, transparency and accountability and if you could specifically highlight these actions /work by your office?
“My work is focused on promoting and driving good governance, transparency and accountability across the entire public service. In fact, we adopted the vision at the start of my mandate of an ‘open, fair, accountable and transparent public service’. That's our aim. Am I contributing to making this a reality? I would say I am. I have certainly got ministries sitting up when asked to show me the procedures and processes they adopt in reaching their conclusions and making decisions. In some instances, they even go out of their way to prepare something after the fact to show me that they followed procedures even though I know that those procedures were drawn up just in order to answer my query. So certainly, I believe I am making a difference, however small it may be. This is a long haul process and I don’t expect the results will be immediately evident. All it takes is the first step. We'll get there eventually,” Mrs Tirant-Gherardi affirms.
Do the different people whom your office has helped come back to say if they appreciated assistance, guidance, support they received?
“Yes they do, and frankly, that is always the best and most rewarding part. I see the relief on the faces of the complainants, but above all I see the satisfaction on the faces of my staff who feel that they have contributed positively to helping someone. The feeling of a job well done is short lived though, since there are others to deal with and not all will end in a positive way for the complainant. But I try to adopt my personal philosophy in all instances, no matter the outcome. Everything in life has two sides. One good, one bad. And we can draw lessons from both the good and the bad that can only help us improve for the future. Applied to the public service, the complaint may have only been a misguided conception but addressing that misconception can help the public service provider do an even better job next time! And that can be applied to the Ombudsman too!”
Compiled by M-A.L