Commission on Administrative Justice CAJ

Open. Accountable. Responsible

Introduction

The Commission on Administrative Justice CAJ, is also known as the Office of the Ombudsman. Its predecessor was the Public Complaints Standing Committee PCSC formed in 2007 as a department in the Ministry of Justice, National Cohesion and Constitutional Affairs under the old constitution. This was more than 35 years after the Ndegwa Report of 1971 recommended that the office be created and empowered to address issues of administrative justice.

Authority

The Commission on Administrative Justice CAJ, is a 'successor' Commission to the Kenya National Human Rights and Equality Commission, KNHREC. Article 59 of Chapter 4 - The Bill of Rights, Part 5 - The Kenya National Human Rights And Equality Commission; excerpts:-

59. (4) Parliament shall enact legislation to ....... restructure the Commission into two or more separate commissions.

Thus the CAJ is a Constitutional Commission with full powers: 

59. (5) If Parliament enacts legislation restructuring the Commission under clause (4)–– ....... (b) each of the successor commissions shall have powers equivalent to the powers of the Commission under this Article; and (c) each successor commission shall be a commission within the meaning of Chapter Fifteen, and shall have the status and powers of a commission under that Chapter.

The Commission on Administrative Justice Act, 2011 is the Act that restructures the Kenya National Human Rights and Equality Commission to establish the CAJ.

Roles and Functions

The roles and functions of the CAJ have largely to do with looking into issues of maladministration out of Sub-Clauses (h), (i), (j), and (k) of Article 59. (2) of the Constitution that touch on the basic and alienable rights of the individual especially when they encounter or interact with officers of County or National bodies, i.e., State Offices and Organs: 

(2) The functions of the Commission are—(h) to investigate any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice; (i) to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct; (j) to report on complaints investigated under paragraphs (h) and (i) and take remedial action; and (k) to perform any other functions prescribed by legislation.

The CAJ is the body that any aggrieved member of the public can turn to for expeditious and impartial redress if they feel that a public officer or Office is guilty of misuse of office, corruption, unethical behaviour, breach of integrity, maladministration, delay in provision of necessary services, any form of injustice, discourtesy incompetence, misbehaviour or any efficiency or ineptitude on the part of public officials. Looked at differently, the Commission is, in a sense, the supervisor of public bodies (including the Judiciary) and its officers in as far as efficiency, courtesy, and impartiality is concerned in order to guarantee specific rights to the citizen:

47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

The CAJ had occasion in June 2012 to address itself to a well-publicised complaint against a public hospital by a female member of the public who had sought sex-change surgical procedures from the said hospital. Although the complainant moved to court on the matter, and hence forced the hand of the CAJ to drop its pursuit of the same, it is interesting that the Attorney General had advised the hospital that it was under no obligation to perform the medical services requested by the complainant.

(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall— (a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and (b) promote efficient administration.

Thus Sub-Article (3) above is fulfilled by way of the enactment of the Commission on Administrative Justice Act, 2011 that established the CAJ. Furthermore, the Commission also took up in 2013, the matter of delayed compensation by Government of an Appeal Court award against it, given to a victim of torture and unlawful detention.

Aiming higher, the Commission also sought special cooperation from County Governors to initiate legislation for the establishment of offices of the Ombudsman in their jurisdictions within the framework of devolution.

From a historical perspective, the CAJ is modeled on the defunct Public Complaints Standing Committee PCSC established in 2007 under the former Ministry of Justice and Constitutional Affairs. The Commission on Administrative Justice Act, 2011, Part 2 - Establishment and Status of Commission:

(2) The Commission shall be the successor to the Public Complaints Standing Committee existing immediately before the coming into force of this Act.

"The CAJ is mandated to address all forms of maladministration, promote good governance and efficient public service delivery by enforcing the right to fair administrative action. We investigate abuse of power, manifest injustice and unlawful, oppressive, unfair or unresponsive official conduct." (Website of the CAJ. Accessed Aug 2013).

Composition and Tenure

Otiende Amollo, Chair of the Commission on Administrative Justice

 The CAJ was established in Sept 2011 following the enactment of the Commission on Administrative Justice Act, 2011. The Commission is composed of just 4 members, a Chair and 3 Commissioners serving on a full-time basis. They will serve for a period of 6 years - until the year 2017, and will not be eligible for reappointment.

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.

2. The Commission on Administrative Justice Act, 2011. National Council for Law Reporting. The Attorney General.

3. Website of the Governance, Justice, Law and Order Sector (GJLOS) Reform Program. Accessed August 2013.

4. Website of the Commission on Administrative Justice. Accessed August 2013.

5. OTIENO MAK’ONYANGO V ATTORNEY GENERAL & ANOTHER[2012]eKLR. High Court at Nairobi (Nairobi Law Courts) Civil Case 845 of 2003. National Council for Law Reporting. The Attorney General.