Interview with Ombudsman Nichole Tirant-Gherardi |13 October 2022

Ombudsman Nichole Tirant-Gherardi

‘Our vision is a public service that is efficient and fair’

The Office of the Ombudsman has from January to September this year registered 66 cases in total, nineteen of which are under investigation.

Over the years, since its establishment in 1993, the volume of complainants coming before the institution has remained somewhat high, despite only a small number resulting in investigations and recommendations.

As detailed in Schedule 5 of the Constitution, the institution that is independent from any branch of government, has the powers to investigate public authorities, complaints of human rights violations and allegations of corruption by public officials. In the event that an investigation concludes any wrongdoing, the Ombudsman is empowered to issue a report to the relevant executive authority detailing its findings, and the recommendations and remedies to address the wrong.

On the occasion of Ombudsman Day today, October 13, Seychelles NATION chats with incumbent Ombudsman Nicole Tirant-Gherardi, who was sworn in on March 30, 2017. Mrs Tirant-Gherardi’s term comes to an end in 2024.

Q: Has the number of complaints this year been as high as previous years?

A: We do get a lot of people coming to complain, not necessarily within our purview. Somehow, it is reassuring in a way, because it makes you feel that it is the one place that somebody will hear them, even if they don’t get any results. And that’s a good human feeling. The staff share that with me, that we realise very often that the person is not going anywhere with this complaint, it is not one of ours, but we still humour them, give them the time, and try to point out to them where they should go, so it really becomes more of a point of advice, rather than an office that can do anything specific for them.

We do tend to get many more cases than we can actually take care of, than we should take care of. The others, there are some that are much more complicated, and much longer, and that take more in-depth work. Some are easier to understand, and we can deal with them faster.

Q: Are citizens aware about the role and functions of the Office of the Ombudsman?

A: People are definitely more acquainted with what the Office has to offer than at the beginning perhaps. But, far too many people don’t understand the role of the office.

Where I also think there is difficulty, is that the public authorities themselves still do not fully understand what the role of the Ombudsman is. And perhaps, that is far more important to work on, than the aspect of the general public.

In order for us to have the real results of the Office’s work, we need to engage the public authorities. That public authority first of all has to do an introversion. That is the first step towards improving administration, it’s to introvert your look to see what it is that I may be doing wrong that is being interpreted wrong. And then, it is to engage with this office. That engagement should also be another level to the exercise of improving public service, because it is all about that.

I am still getting far too much attitude from the public authorities that this is a legal matter, and therefore ‘take us to court’ or ‘the court will decide’. And, where I am trying to go, right from the beginning with this exercise, is to say, that we really are about improving on a completely different level to what you are traditionally used to.

The creation of an Ombudsman was in order to provide an alternative, another level. And if this office is on another level, not in the sphere of the law, not in the sphere of politics, but in a totally different sphere.

The Ombudsman, who is supposed to be outside politics, outside any legal constraints, has this much broader area in which to operate, which is why there is no order that comes out of this process. It is only recommendations, and therefore that recommendation must come in and have some weight in that public authority thinking that it has indeed done something wrong.

Our slogan for the office is ‘Righting Wrongs’ and I think that if we can get the public authorities themselves to understand this, then I think I will leave here a very happy person. But until that happens, I have a degree of frustration.

Q: The Office was set up in 1993, 29 years ago, so, it would be expected that by now it is well established. Has the issue of lack of engagement with public authorities persisted throughout the years?

A: I think it has been an ongoing battle for the office. I don’t really want to pass judgement on any previous administrations or incumbent in this post. I think that it is just one of those things where the office remained misunderstood, unknown, and perhaps to a certain extent, I just think that it featured somewhere in the nowhere, and people didn’t think that it was important enough to give much attention to.

I think I can rightly say that when I just look at the budget that has been given to this office over the years. The budget was minimal, the sort of budget you would have seen in a little office. I’m pretty sure even the complaints office that was set up a few years ago, probably had a bigger budget. That I think was part of it, and consequently, I think everybody who came into post felt disarmed to begin with.

The office started off very well in the 1990s up to the 2000s, and I suppose somewhere along the line, people just gave up, and it became less and less conspicuous. It might have had less physical impact, because it wasn’t being seen to be doing things. The reports came out, and, we are putting the reports up on our website as we go along, because we are having to scan most of them, and I’m pretty sure even the executive and the legislature probably never read the reports.

I’d like to talk about the engagement on the reports because I feel very much, and I have tried when I came in to make reports as thorough and as interesting as I can. I may have failed on the interesting, but they are still very thorough. The report is handed over to the legislature in the beginning of the New Year for the previous year; it is an activity report of the previous year, which we hand over by January 30. I have since I came in, every year, diligently tried to engage the National Assembly (NA) in particular, by handing over the report and asking that I meet with members to talk about it.

Especially last year, where questions had been put to me in the course of 2021, at the NA budget allocation debates that made me feel very uncomfortable, because one of the questions was literally ‘why do we bother with an Ombudsman’s office? Why should we keep you when there are other institutions doing the work you do?’. I felt that that was critical because it spoke volumes about the knowledge that members of the NA had, and I felt that it was important to get this debate going. And, I asked that if at least I could meet with the committee of the NA, maybe not the whole floor, to talk about the report, and it never happened. And, it has never happened even in the years before.

I haven’t had that feedback from the NA, and I regret that very much because it is something that I think can help establish this relationship, and establish not only the relationship, but also, understanding the role through the eyes of the general public, actually seeing the kind of reasoning and reflection that goes into the work of this office, and into the reports.

Q: Is the office adequately resourced to discharge its functions satisfactorily?

A: There are two dimensions to it, there’s the monetary dimension and there is the physical, human resource dimension. I would say that both of them are lacking. Because this office has remained so small, its hands have been tied. Because it hasn’t had the budget it hasn’t been able to recruit, and because it hasn’t been able to recruit, it hasn’t been able to ask for more budget.

It must not be forgotten, when you look at an office like this, it has two very big functions; one it has to operate as an office, so, because it is getting a budget from the state it must do all the things that are expected of any office. You can’t have a financial controller in an office dealing with R3 million. You also can’t have a human resources manager, in an office dealing with six people. So you have somebody that is a busy body that can do everything, but that person doesn’t necessarily need top qualifications. But, nor does that person expect the salary of a clerk. You need to be able to work around these things and accommodate.

When you are considered as a public authority and you are constrained with the same rules that apply to everybody else regardless of size and budget, so, you can see straight away that you are going to have difficulties. So, how do I grow my office? How do I set up a scheme of service for example? How do I determine the progression of the people that work for me? How do I build an office where anybody can come in junior and grow? I cannot do that with the limited resources I have.

Then there is the core activity of the office. The core activity of the office is receiving complaints, investigating, coming up with proposals of how to fix it, and how to improve for the future. You’ve got all those aspects and you need the people who are qualified. Now, here, you need a lot of legal brains and legal background, and they certainly don’t come cheap, especially now. When you see that and you are trying to build but don’t have the resources financially, then it really starts to hurt, really hurt. That’s where the office needs building, and there’s still a lot of work to do, and there is still a lot of work, providing that everybody understands that this is an office that needs to go much further.

When you look at the Constitution and what the Constitution says, ‘receive complaints from all public authorities about actions that are taken by public authorities and public officers in the course of their administrative duties’. So, administrative action that they have taken that has affected somebody, violations of human rights, fraud or corruption, is all still there as well as Constitutionality of a law, challenging, taking it to court. This is, in my mind, a huge office. It’s a huge office with tremendous resources. And I have travelled in the region through our networking, and I have travelled in the wider region, and I am jealous each time I travel, and you see the offices. Even in Southern-Saharan countries, we see huge Ombudsman institutions that make me feel embarrassed sometimes.

And yes, we have seen, that because the office hasn’t been seen to be doing violations of human rights, fraud and corruption, we have set up institutions now to do that. And straightaway you can see that the budgets attributed to those institutions are significant, compared to the budget attributed to this one.

Q: With the establishment of other bodies to deal with human rights and corruption, what role do you play in relation to those two institutions? Do you function separately and independently?

A: But the way that the human rights legislation has been drafted, it really does give a lot of powers to the Seychelles Human Rights Commission (SHRC) with regard to human rights violations. My take on that then would be that it’s better to leave it to them, because they got the budget for it anyway.

We are trying to be as collaborative as we can and working through a memorandum of understanding (MoU), so that when one has taken up a matter then that body will deal with it. There is room for improvement in the process, a lot of room for improvement because obviously, the problem that that can generate is there can be overlap on what we look at, and there can be diverging views that come out of that overlap, that could backfire on all the institutions.

I tend to say that if it is something that is more administrative, then I will refer any part that needs to be referred, but point out at the same time that I am retaining a specific bit. Again, it requires a very hands-on exchange between the institutions, which is sometimes not easy to manage. It is not easy to get everybody involved in the process to see things the same way.

I always say that when you have two institutions doing the same thing, nobody is going to do it in the end, because both of them will say the other one will do it, or at least not give it the credit that it deserves. That is a danger that has to be given some thought. For the time being, I try to say, because of the aspect that human rights violations may need to go to the Constitutional court for redress, because it is the only place you will get the redress, I feel that although I have the powers to assist somebody to go to the Constitutional court, I don’t have the resources, human and financial to be able to do so. So I will tend to push that person to the SHRC. What the outcome is there is beyond my control.

Q: Government has been placing a lot of emphasis on service delivery within public administration. Do you feel that there has been an improvement?

A: There has been a lot of improvement. This country has always been very good at producing laws and producing the paperwork that goes with laws. But over the years, we have tended to lapse, we have been very slapdash, and that’s why, it’s the slapdash and not so much legal, but it is still very important that you get that right, that you do that right.

My first question to everybody is how they reached a certain decision. And, if you can convince me that you have followed the rules, that these are the parameters that you used to reach that decision, even if I feel that the decision was wrong, I cannot fault you for that. I could eventually say that the rules themselves are wrong, and suggest that the legislature takes a look at that. That could be a recommendation. There is always work that the Ombudsman could do that is not of interest to court.

This is the value-addition that this office brings all the time, is to say, if you applied the rules this is how you came to that conclusion, yes and you are above reproach but the rules themselves are wrong. It’s one of the opinions that I can find, that the person followed the law, but the law itself is the problem. I can make a recommendation. I can’t change it, I can’t make it happen, but I can make a recommendation. That’s why an MNA sitting in the NA, especially if they are in the Opposition, would want to take this report and have a look at what the Ombudsman has said is not going right, and pick it up, run with it and make it a political statement.

Q: Do you feel that you have contributed towards the progression of the Office?

A: I think definitely we have brought about significant changes in the past five years, because the people who have been through the Office have gone away happy. This applied to the majority of course, because there are always those who feel that you could do much more, expect you to do much more and are disappointed that you haven’t. But, by and large, those who have come through have seen that the effort was enormous, and the effort sometimes outsized the size of our capacity to deliver. I am very proud of that because that is something that I always felt is of primary importance, in my career, throughout, wherever I have been is to give the best of me, and to try to bring out the best of the team that I work with.

By and large, I feel that I have contributed to giving the office stature, even if the visibility is still lacking. In a warped kind of way, the fact that we continue to get so many complaints is itself visibility. People still feel that they can come here and that they should come here. And if they don’t expect results, they still feel that they should come, that also to me is a plus.

I intend to work hard in the next year, because as we go into 2023, I am in the final lap. I intend to work a little harder to just tidy up the loose ends, to give that greater visibility to the Office.

Q: What are some of the highlights from the past five years?

A: A few years ago, the Ministry of Finance under the previous administration had come up with a piece of legislation that they wanted to pass, to create some sort of control over the Constitutional bodies, including the Ombudsman, in terms of finances. The Public Finances (Control and Management) Act does not really cover this Office, although the office follows everything in there. The new proposed law was setting in place all kinds of committees and sub-committees which I felt takes away my autonomy and independence. With the other Constitutional bodies, we fought that off.

Autonomy is important, and I want it to be fixed before I leave. I need to be able to do what is best for my office.

Additionally, when I came in, I felt swamped at how we could keep our focus. We get over 120 complaints a year, and around 75 hang in the balance, while 25 are investigated. Case management, I knew was going to be a problem, and would be very hard to keep tabs of. That was a worry for me, but one of the first things I tried to do was to see if we could get a proper case management system in place. So, we started working on an Excel system, which was a good compromise but still very lacking. But, because I am a member of the L'Association des Ombudsmans et des Médiateurs de la Francophonie (AOMF), and we are now, through the Association, just putting up our world-class system. It will be housed internationally, and will be shared by Ombudsman Offices around the world. It will allow users to go to our website, and put in their information which will be treated as a complaint, without them having to come here.

Q: What vision do you have for the office?

A: My first vision when I came was to set a strategy, to give ourselves some kind of vision, as we didn’t have one. Our vision is a public service that is efficient and fair.

But more importantly, I would like to see the next Ombudsman coming in to a functioning office so that they can hit the ground running and take it from there. We have lost 25 years, but it’s never too late. To me, if I can stand by the door and welcome the person in, and show them around, I will go happily quietly, and relieved.

Q: The Office is one of the parties that are challenging the Tenth Amendment in the Constitutional Court. How did it escalate into this?

A: There was consultation. I received an invitation to discuss the draft and I made it clear that I was not happy about it, and that I would submit my comments on the draft. From that, an opinion was drawn up, and the opinion was sent, not within the timeline that I was given. It is always an exercise that I try to do in-depth, and not superficially. And then the process quickened, and the announcement made that the process was going before the NA.

I subsequently tried to send the opinion to the NA, and I expected that my office would have been invited to speak to, maybe the Bills Committee, and not the whole Assembly, and again, its part of the engagement, and that wasn’t done.

I still feel as strongly about that piece of legislation as I did before I started the exercise. I was not convinced by the explanations that were given. This is the first case from the Office of the Ombudsman, it has never been done before.

The teamwork is there because we all felt the same way about it, and I think it is very important that this challenge is done. It will guide for the future, so it falls exactly where my office talks about. It is about setting the stage so that future governments, future administrations will know exactly where they stand on the procedures to follow.

Laura Pillay