Here Comes the Ombudsman, By Eric Teniola
I read in the media recently that President Muhammadu Buhari is to implant the office of ombudsman as one of the multiple measures to combat corruption in the country.
If it turns out to be true, it may be a welcome development for as he said in his last visit to South Africa, If Nigeria does not kill corruption, then corruption will kill Nigeria.
Since the constitution does not make room for such an office, it follows therefore, that the President will seek approval of the now crisis-ridden National Assembly.
To his credit and whatever anyone will say, President Olusegun Obasanjo created the ICPC and the EFCC with the approval of the National Assembly. His two successors never created any front for combating corruption.
Following the submission of a bill by President Obasanjo, the Independent Corrupt Practices and Other Related Offence Commission bill became a law on June 6, 2000 when the then Clerk of the National Assembly, Ibrahim Salim, gave assent to it and a concurrent assent by President Obasanjo on June 13 made the commission to take off.
The Economic and Financial Crimes Commission (EFCC) was established by President Obasanjo in 2003 partially in response to pressure from the Financial Action Task Force on Money Laundering (FATF), which named Nigeria as one of 23 countries non-cooperative in the international community’s efforts to fight money laundering.
If President Buhari could create the office of the ombudsman, it will be to his credit. Ombudsman or public advocate, is not a new phenomenon. A prototype of ombudsman may have flourished in China during the Qin dynasty in 221BC and in Korea during the Joseon dynasty. Right now, the office of ombudsman exists in 59 countries of the world.
They include Canada, Finland, Poland, South Africa, France, China, Italy, Iceland, Jamaica, Peru, Sri Lanka, Lithuanian, and Philippines.
The idea of Ombudsman was first introduced in Nigeria in 1975, 40 years ago, by the sub-committee on National Objectives and Public Accountability of the Constitution Drafting Committee.
The Chairman of the Committee by then, who is very much around, was Professor Ben Nwabueze, who was then Professor of Law, University of Nigeria, Nsukka. Other members of the committee by then were Alhaji Ibrahim Imman, former Leader of opposition in the Northern House of Assembly; Alhaji A.Y. Aliyu, lecturer Public Administration, Ahmadu Bello University; Chief Paul Unongo, former Lecturer University of Lagos; Professor E.U. Emovon, Professor of Chemistry,University of Benin; and late Mr. Kanmi Ishola Osobu (my egbon), a Lagos Lawyer popularly known as “People’s law”.
In their submission, they noted that “As in Sweden and Finland, a parliamentary agent (ombudsman) could exist side by side with a presidential commissioner (justitiekansler). Their functions are largely the same, with hardly any evident demarcation between them. Cases seem to be referred by the public rather haphazardly to one or the other. Close personal co-operation between them prevents any wasteful overlapping in practice”.
They went further to state that “The Ombudsman strictly so-called is an instrument of parliament, and it is in that form that it has been received in many countries from its original Scandinavian habitat. He is responsible to, and relies upon the bacing of, Parliament, which provides the ultimate sanction for his authority and prestige. He reports directly to Parliament, and continued disregard of his recommendation and suggestions would provoke parliamentary action”.
Unfortunately the idea of the ombudsman was rejected by the constituent assembly in 1978 but what the assembly passed into law was the creation of a code of conduct bureau with less powers.
The argument then was that the office of the ombudsman will duplicate the duties of the Inspector General of Police and other relevant agencies.
So when President Obasanjo came to power in 1999, he insisted that the Nigeria Police is not sufficiently equipped to combat corruption and that was why he came out with the idea of ICPC and EFCC.
I do not know the scope of the ombudsman of President Muhammadu Buhari as being speculated, but he was part of President Obasanjo’s government between 1976 and 1979, and he was aware of Professor Nwabueze sub committee’s submission on the issue.
Let us take a look at the full details of what the Professor Nwabueze-led committee submitted in 1975—
“1. The Constitution should establish a Publish Complaints Commission, consisting of a Chief Public Investigator as chairman and 8 Public Investigators. All powers of investigation should be vested in the commission, and not in individual Investigators, but the commission, may sit in panels of at least three Investigators. An Investigator should be appointed to a State or group of States to receive and screen complaints on behalf of the Commission. A list of all cases screened out must be laid before the Commission, which may direct any complaint on the list to be investigated. An office of the Commission should be established in each State capital and in each division within the State. The qualification of the Chief Public Investigator and of the Public Investigators, the method of their appointment and removal, their tenure, jurisdiction over subject-matter and over persons should be prescribed in the Constitution.
2. Qualifications— A person to be appointed a member of the commission should be a man of integrity and humanity, with wide administrative experience. No legal qualification should be required either for the Chief Public Investigator or for the other members.
3. Jurisdiction—(a) Over Persons— This should extend to individuals and institutions. Jurisdiction over institutions is necessary in order to enable the Commission to enquire into administrative systems. It should also extend to both public and private organisations. It is desirable that registered companies, for example, should be brought within the jurisdiction of the Commission. The Commission should not, however have jurisdictions over the President, because the dignity of the nations highest office needs to be protected. When the Commission receives complaints against the President, it should send them to Parliament.
(b) Over subject-matter— The Commission should have jurisdiction to enquire into the conduct or action of any person or institution in the exercise of his or its office or authority or any abuse thereof. 4. Appointment— Members of the Commission should be nominated by the President and approved by Senate.
5. Removal— (a) Grounds— Inability or misbehaviour should be the only grounds for removal. Breach of Code of Conduct should constitute misbehaviour for this purpose. (b) Procedure for Removal— To be initiated by motion in Senate supported by two-thirds majority of all members calling for the removal of a member of the Commission.
The President of Senate should then refer the matter to the Chief Justice of Nigeria, who will appoint a tribunal of three present or past superior court judges. The tribunal enquires into the matter and reports to both Senate and the President.
Report by the President upon an adverse finding.
6. Tenure — Three years and a maximum of two terms.
7. Salary – To be a charge on the Consolidated Revenue fund of the Federation. 8. Relationship to Parliament— The character of the Commission should be that of agent of Parliament. It should report its findings and recommendations in each case to—Parliament, the person or agency complained against, the President and the complaint.
Remedial action taken by the person or agency complained against should be reported to Parliament. Annual report containing summary of cases should be laid before Parliament.
9. Relationship to Public — The public should have access to the Commission’s report in individual cases, to the annual reports and to its proceedings. This is important if the Commission is effectively to serve the role of making the administration accountable to the public. The Commission should have discretion to decide to conduct certain proceedings in camera. The present Public Complaints Commission Decree of 1975 leaves it in the “absolute discretion” of a Commissioner to decide whether, and if so, in what manner he should notify the public of his action or intended action in any particular case. The Commission’s discretion in this respect should not be unfettered or even so wide. 10. Independence of the Commission in the exercise of its functions— In the exercise of its functions the Commission should not be subject to the direction or control of any other person or authority.
Let us await what President Buhari will submit to the National Assembly for approval.
Eric Teniola, a former director at the presidency, lives in Lagos