EXTRA-JUDICIAL

UNIT 9 AVENUES OF REDRESS

 INTRODUCTION
• The primary means of judicial address is through the courts of law.
• However, with the emergence of the welfare state, there was need
for other means to resolve disputes in the social welfare context.
• These include:
 Administrative tribunals
 Tribunals of Inquiry
 Ombudsmen (Public Protector)
 Administrative Tribunals

 Parliament has established several special tribunals which are

designed to be part of some scheme of administration. Collectively
they are sometimes called administrative tribunals.

 Many tribunals make decisions by applying legal rules to the facts of

cases. To this extent, their function is not dissimilar to courts of law.

 Some tribunals deal with land matters, tax matters service providers
and service commissions. They usually focus on a technical subject.
They also deal with abuse by public officers.

 Tribunals are conspicuous in Administrative law because they have

limited jurisdictions and their errors are subject to judicial review by
the High Court.
 Tribunals: Rationale and Nature

IT IS GENERALLY FELT THAT THE COURT PROCESS IS GENERALLY TRIBUNALS ALSO ATTEMPT TO
TRIBUNALS OFFER SPEEDIER, CONSIDERED AS BEING SLOW, LONG MINIMIZE THE FORMALITY AND
CHEAPER AND MORE ACCESSIBLE ELABORATE AND COSTLY. PROCEDURAL TECHNICALITY
JUSTICE TO INDIVIDUALS TRIBUNALS THEREFORE OFFER A TYPICAL OF COURTS OF LAW.
MORE ACCEPTABLE REMEDY.
 COMPOSITION

• There is no general principle requiring all tribunals to be similarly

constituted. The composition depends upon its enabling legislation
and subject matter.
• Usually, each tribunal is composed of a legally qualified chairperson
with two other members appropriately qualified.
• In some cases, these will be experts in the relevant subject matter or
simply possess some representative quality.
• Generally, composition and independence can be determined by
considering the enabling legislation.
 EXAMPLES OF PARTICULAR
TRIBUNALS

LANDS REVENUE POLICE PUBLIC JUDICIAL

TRIBUNAL APPEALS COMPLAINTS COMPLAINTS
TRIBUNAL AUTHORITY COMMISSION
 TRIBUNALS OF INQUIRY

 A statutory inquiry is a formalized version of the fair hearing which is

required by common law according to the principles of natural justice. It is a
framework within which natural justice can operate.

 A group of people set up to determine a specific matter referred to it under

the Inquiries Act.

 Inquiries come in many forms. On the one hand, by far the most common is
the statutory inquiry which is the standard technique for giving a fair
hearing to objectors before the final decision is made on some question of
government policy affecting citizens’ rights or interest. For example in 1972
prior to the establishment of the one-party participatory democracy.
Masebo Inquiry, Siliya inquiry etc

 On the other hand, an inquiry may be essential once something has gone
wrong to establish facts. For example if there is an accident. Eg Mufulira
Disaster. Inquiries are usually discretionary.
 Tribunals of Inquiry

• What all the forms of inquiry have in common is the independence of

the person who conducts the inquiry and writes the report. Different
forms of procedures may be adopted. They may sit in public or in private.

 The Common law presumption that Parliament intends power to be

exercised fairly is all the stronger where parliament itself has provided for
a hearing.

 Commissions of Inquiry in Zambia are initiated by the President to

investigate matters of public welfare

 See Mutuna and Kajimanga v The Attorney General [2014]

ZMHC 129 (21 December 2014)
 INQUIRIES ACT CAP 41 OF
THE LAWS OF ZAMBIA

Preamble:
An Act to provide for the issue of commissions and for the
appointment of commissioners to inquire into and report on
matters referred to them; to prescribe their functions; and to
provide for matters incidental to or connected with the
foregoing;
1. This Act may be cited as the Inquiries Act.
2. (1) The President may issue a commission appointing
one or more commissioners to inquire into any matter in
which an inquiry would, in the opinion of the President, be
for the public welfare.
INQUIRIES ACT …. CONTD

(2) Every commission shall specify the subject, nature and extent of the inquiry
concerned, and may contain directions generally for the carrying out of the
inquiry and in particular may contain directions as to the following matters:
(a) the manner in which the commission is to be executed;
(b) the appointment of a chairman;
(c) the constitution of a quorum;
(d) the place and time where and time within which the inquiry shall be made,
and the report thereof rendered;
(e) whether or not the proceedings shall, in whole or in part, be held in public.

(3) In the absence of a direction to the contrary in the commission concerned, an

inquiry shall be held in public, but the commissioners shall nevertheless be entitled
to exclude the representatives of the press or any or all other persons if they
consider it necessary so to do for the preservation of order, for the due conduct of
the inquiry or for any other reason.
 REPORTING

 A Commission of Inquiry usually renders its Report or

recommendations in public. They hand it over to the President.
 The report comes in the form of Recommendation.
 This is a weakness in that the President can take the advice or
leave it.
 Prone to Abuse
 Examples of reports which have not been Published:
 Gabon Air Crush Report
 Roger Chongwe Commission of Inquiry (Barotse)
 Justice Bobby Bwalya Commission of Inquiry
 Mutembo Nchito
 OMBUDSMAN: PUBLIC
PROTECTOR

• The word Ombudsman is a Scandinavian word meaning officer or

commissioner. It means a commissioner who has the duty to
investigate and report to parliament on citizen’s complaints against
government.
• The Zambian equivalent of the Ombudsman is the office of the
Public Protector which is established under Act Number 15 of
2016, the Public Protector Act
• Article 243 of the Constitution of Zambia created the office of the
Public Protector (PP).
• Its predecessor is the Commission for investigations.
• In order to understand what the PP is you need to understand its
past, so we need to know the history of the office of the PP
 THE COMMISSION FOR
INVESTIGATION

Prior to the enactment of the Public Protector Act, the Zambian equivalent
of the Ombudsman was known as the Commission for Investigation, which
was established under the Commission for Investigation Act, Cap 39 of the
Laws of Zambia

The institution of the ombudsman was unknown in Zambia until 1972, as

the country moved from a multi-party, political arrangement to one-party
rule.
COMMISSION OF INVESTIGATION:
HISTORICAL DEVELOPMENT

• It emerged as one of the recommendations of the Commission appointed in 1972

to determine the modalities of the one-party system of government.
• A number of people who appeared before the Commission called for the
establishment of the office of Ombudsman with power to investigate abuse of
power and corruption in all its forms in the country
• The demand for the establishment of this institution was actuated by the concern
of some of the petitioners that some people had accumulated considerable wealth
through dubious means and in so short a time since independence
 COI: HISTORICAL
DEVELOPMENT

Perceived Advantages:
• The Ombudsman would be looked upon as an independent and
impartial person hence officers or institutions against whom complaint
has been lodged people would be inclined to seek his services;
• Complaints by aggrieved persons would be presented informally and
without any costs to them;
• The Ombudsman would consider the whole field in which a complaint
arose by allowing flexibility in investigating complaints, which is not
possible with ordinary courts of law;
• The Ombudsman would be of tremendous value to the administration, in
that he will informally advise, remind and reprove the public
 COI: POWERS AND
JURISDICTION CONT…

• The Commission of Investigations Act did not spell out the powers of the
commission as such, instead this was inferred from the categories of
persons and institutions to whom the Act was applicable.
• The Act applied to government employees and councilors of local
authorities, persons in the management of parastatal bodies, those in the
service of institutions of higher learning, if such institutions were wholly
or partly financed from revenue of the Republic, members and officers in
the service of Commissions established by an Act of Parliament or by the
Constitution.
 COI: POWERS AND
JURISDICTION

• It enjoyed broad powers of investigations in any matter of individual injustice or

administrative abuse of power or authority - involving corruption, tribalism,
nepotism, intimidation and all other forms of discrimination taken by or on behalf
of any department or Ministry of government, any statutory corporation set up
entirely or partly out of public funds voted by Parliament, including institutions
of higher learning.
• The power of investigations extended to any member of the public service,
security forces, organization within the Republic and any person for any action
taken in the exercise of the administrative functions of that department, ministry,
corporation, authority, organization
 INVESTIGATOR GENERAL

The qualifications for the The Investigator General

But in addition, the
Investigator were those of was appointed by the
candidate must have had
persons eligible for President in consultation
wide administrative
appointment as High Court with the Judicial Service
experience.
Judge. Commission.

He was assisted in his

work by three The appointment of the
Only men of high standing
Commissioners, who Commissioners was for a
in society could be
together constituted the non-renewable term of
appointed Commissioners
Commission for three years.
Investigation.

(Now known as the Public

Protector)
INVESTIGATOR GENERAL

The Investigator General enjoyed a protected tenure like a judge.

In case of his removal Parliament would initiate investigation into any allegations
leading to the removal of the Investigator General by two thirds majority decision
of all members followed by the establishment of a tribunal appointed by the Chief
Justice consisting of a chairman and two other members but, one of them must hold
or must have held a high judicial office.

The report of the tribunal had to be presented to the President for action, and he
would act as recommended
 COI: OPERATION
• A complaint or allegation could be made by an individual or group of
persons either in writing or orally
• On receipt of the complaints, the Commission would conduct, in respect of
deserving cases, an inquiry aimed at ascertaining their genuineness
• The Act empowered the President, where he thinks if fit, to direct the
Commission to investigate any allegations of abuse of authority by any
public official.
• It could also investigate any allegation of maladministration or abuse of
office or authority by any person to whom the Act applies.
• The Commission could not move on its own. There had to be allegations
made for it to move into action
 COI: OPERATION
• If the result of the investigation was a finding that by reason of the public official’s
conduct, act, omission or decision, the complainant had suffered injustice or hardship,
the Commission would make written recommendations to the President in which it would
suggest a redress or remedy to the injustice.
• The Commission was expected to submit reports to the President and another report by 31
December every year, to the National Assembly containing the summary of cases
investigated and the action taken or recommended.
• The Report submitted to the National Assembly could not disclose the identity or contain
any statement which may point to the identity of the person whose conduct was the
subject of investigation by the Commission.
• The work of the Commission could not be challenged, reviewed quashed or called into
question in any court except in situations where the Commission had no jurisdiction to
entertain the complaint
 COI: LIMITATIONS OF POWER
• Although the field of investigations by the Commission was wide, there
were serious limitations on this power:
• Even if a case fell within the class of cases to be investigated by the
Commission, it would not investigate them where the complainant or
aggrieved person had the opportunity of obtaining relief by way of
representation to an executive authority
• the Commission will not hear a complaint where it was possible for the
aggrieved person to obtain relief or redress by means of an application,
appeal, reference or review to or before a tribunal established by or
under any law
• the Commission would also not hear a complaint if one had a chance of
obtaining redress through the Court.
 PUBLIC PROTECTOR

• Although there are some differences, the functions of the Commission for
Investigations and the Public Protector remain the same
• Assets of Commission for Investigation vest in the Public Protector
• Continuity of cases, the office together with its officers
• Section 43 - Minister may issue Statutory Instruments and Regulations
preventing maladministration and anti maladministration strategies in
Public Institutions and for and protection of informers.
 ADMINISTRATIVE ACTION

Section 2 - Can investigate :

• A decision and an act
• Failure to decide or do an act
• Formulation of a proposal or an intention
• Making of a recommendation
• Act defines “Mal Administration” is an action taken or omitted
to be taken, or a decision made or omitted to be made by a
state institution in the performance of an administrative
function which is unfair, unreasonable, illegal or not
compliant with the rules of natural justice
• Also defines the rules of natural justice
  Consider administrative actions, practices and
procedures and make recommendations on
FUNCTIONS appropriate and in appropriate administrative
actions
 Prevent mal administration in public
institutions
 Disseminate information on the evils of mal
administration
 Enlisting and fostering public confidence and
support against mal administration
 Initiate complaints against alleged or suspected
mal administration
 Lead agency against combating
maladministration etc
 OPERATIONS

My act on suspicion of
2 Deputy PP’s and Chief May act on own complaint
Unreasonable, unjust,
Administrator or anonymous complaint
unfair practices

Performance of functions
May investigate and make
Conduct which is against in a manner which is
orders and
public interest dishonest, incompetent or
recommendations
irregular
 POWERS AND
LIMITATIONS

 Reports to Parliament
 Can only be removed or appointed in process as a Judge
 Article 244 of the Constitution: Bring action before court, Recommend action
against Constitutional Office holder hear appeals
 Search, summon witnesses
 Report to be made within 12 months after complaint was made
 Cannot investigate
 Judiciary or Parliament, or
 any matter before the Court (sub-judice rule)
 Matter which is of a criminal nature
 Matter Which relates to the Prerogative of mercy
 Instead, can refer such matters to the relevant authority e.g. ACC, DEC,
 OFFENSES UNDER THE ACT

FALSE TESTIMONY TO MISLEADING THE OBSTRUCTION, REFUSAL OR FAILURE

THE COMMISSION PUBLIC PROTECTOR INSULTING, HINDERING TO PROVIDE THE
DELAYING, PUBLIC PROTECTOR
IMPERSONATING THE WITH A DOCUMENT
PUBLIC PROTECTOR OR
AN OFFICER

DESTRUCTION OF PUNISHABLE BY A FINE

ANYTHING OR OR IMPRISONMENT
PREVENTING SEIZURE NOT EXCEEDING 2
OF ANY PROPERTY OR YEARS
DOCUMENT
TEST YOUR UNDERSTANDING
1. What is the place of tribunals in obtaining redress? How are they
different from judicial review?
2. Are Inquiries instituted under the Inquiries Act still relevant or
redundant? What suggestions for improvement can be made?
3. What is the primary role of the Ombudsman?
4. What are the notable similarities and differences between the
Commission for Investigation and the Public Protector?
5. What powers and limitations does the Public Protector have? Can
the limitations be justified?