Republic of Zambia OFFICE OF THE PUBLIC PROTECTOR

Republic of Zambia OFFICE OF THE PUBLIC PROTECTOR PRESENTATION TO LAW ASSOCIATION OF ZAMBIA Annual Junior Lawyers Committee (JLC) Advocacy Skills Training Workshop at Cresta Golfview Hotel on the Role of the Public Protector /Ombudsman Presented by: Mrs Caroline C. Z. Sokoni

Origin of the Ombudsman Institution • The origin of the ombudsman can be traced to Sweden when the Swedish King Charles XII signed a decree establishing the Hogste Ombudsmannen (the Highest Ombudsman) in October 1713 • Swedish word “ombud”, describes a person acting as a representative, with authority to act on behalf of others. • The Swedish Parliamentary Ombudsman was formally established in 1809 • The concept then spread to the Scandinavian countries in the 1950 s, most of Europe in the 1960 s. In Africa, Tanzania was the first to adopt the concept in 1967. This was followed by Zambia in 1974 and others then later followed

Ombudsman In Zambia • Zambia was the 2 nd Country in Africa to establish an Ombudsman institution in 1974 called Office of the Investigator General • The Investigator General discharged the mandate through the Secretariat known as the Commission For Investigations (CFI) • The establishment of this Office was necessitated by complaints from the people; that most public servants were exercising power beyond their authority and that people did not have anywhere to have their complaints redressed.

CONT……Ombudsman In Zambia • The Commission For Investigations was an Executive Ombudsman, implying that it was only accountable to the Head of the Executive branch of government, who is the President. • The President was the final enforcement mechanism in instances where a respondent state institution disobeyed the recommendation of the Investigator General • The Office also sought permission from the Head of State before commencing any high level investigations • According to the critics, this provision in the Law rendered the office less effective and less independent

CONT…. . OMBUDSMAN IN ZAMBIA… • The Office operated in camera, and never made public any of its investigative reports • The first Investigator General was Honourable Mr Justice Frederick Chomba, followed by the late Honourable Mr Justice Robert Kapembwa. Honourable Madame Justice Florence Mumba also served at the office then later the late Honourable Mr Justice Valentine Chileshe.

Transition From Executive To Parliamentary Ombudsman • On 5 th January, 2016, His Excellency Mr Edgar C. Lungu, the President of the Republic of Zambia signed into Law Act No. 2 of 2016, which is the Constitution Amendment Act, which amongst other things transformed the Office of the Investigator General into a Parliamentary Ombudsman called the Public Protector • As of 5 th January, 2016, the mandate of the Office of the Investigator General has now been inherited by the Office of the Public Protector.

CONT… • Article 243 of the Constitution establishes the Public Protector • Act No. 15 of 2016, which is the Public Protector Act establishes the Office of the Public Protector • This is the Secretariat through which the Public Protector discharges the mandate provided in the Constitution and the Public Protector Act

Composition of the Office of the Public Protector • The Office of Public Protector is composed of the Public Protector and Two (2) Deputy Public Protectors. • The Public Protector Act also establishes the office of the Chief Administrator and the Registrar. • The Chief Administrator is the Controlling Officer and Head of Administration.

What Is Maladministration? • Maladministration simply means bad public administration. • The mandate of this Office is to investigate, educate and redress matters relating to maladministration or administrative injustice in the Public Sector.

FURTHER…… • • a) b) c) d) e) Maladministration may be defined as administrative action (or inaction) based on or influenced by improper considerations or conduct. It could arise from failure to carry out a duty imposed by law or from an action, which went beyond the powers conferred by law or used the powers conferred by law for a purpose for which it was not intended The following are some of the causes of maladministration; a bad law/policy, non adherence to the rule of law, Incompetence by the public and constitutional office holders Arrogance/Rudeness Indecision/Delay

Roles and Functions of the Public Protector? The Public Protector may investigate an action or decision taken or omitted to be taken by a State Institution in the performance of an administrative function. The Public Protector may: • Bring an action before a Court of competent jurisdiction. • Hear an appeal by a person relating to an action or decision taken or omitted to be taken in respect of that person.

CONT… • Make a decision on an action to be taken against a Public Officer or Constitutional Office holder, which decision shall be implemented by an appropriate authority. • The Public Protector has the powers as those of the High Court in enforcing decisions issued by it. • The office of the Public Protector shall report to the National Assembly on matters concerning its affairs.

Functions…. a. To consider the administrative actions, practices and procedures of State Institutions and make recommendations to State Institutions b. To initiate, receive and investigate complaints of alleged or suspected maladministration. c. To investigate any complaint of human rights abuse arising from maladministration or any conduct which the Public Protector has reasonable grounds to believe may be connected with, or conducive to, maladministration. d. To advise Government on good administrative practices.

Jurisdiction of the Public Protector The Public Protector has jurisdiction over all Public institutions; • Any person in the public service (i. e. Ministries, Government Departments as well as Service Commissions); • Any person in the service of a Local Authority;

CONT’D • Any person in the service of an institution or organisation whether it is established by an Act of Parliament or otherwise in which Government holds a majority of shares or exercises financial or administrative control(i. e. Statutory Bodies and Parastatals) • Any other official engaged in the public sector as envisaged under the Article 244 of the Constitution of Zambia (Amendment ) Act No. 2 of 2016

Limitation Of Powers Of The Public Protector • Article 245 of the Constitution as amended provides the limitations of powers of the Public Protector as it cannot investigate a matter which: - a) is before a court, court martial or a quasi-judicial body; (b) relates to an officer in the Parliamentary Service or Judicial Service; (c) involves the relations or dealings between the Government and foreign government or an international organisation; (d) relates to the exercise of the prerogative of mercy; or (e) is criminal in nature.

Conclusion • The Public Protector contributes to; q The efficient and quality public service delivery system q A more open, accountable and transparent public service