Published on 26 August 2019
Last year, the Ombudsman of Lesotho, Advocate Leshele Thoahlane, was publicly searched by the police in the room where he was conducting hearings, in the presence of citizens and journalists.
The former Ombudsman for Slovakia Dr Jana Dubovcová, used her own-initiative powers to investigate the decision to place Roma children, without intellectual disabilities, into schools for children with special needs. The Ombudsman concluded that the decision was not taken on educational grounds, but in fact constituted racial discrimination. The Ombudsman sought to lay her report before the Parliament, the National Council of Slovakia. The Council refused to discuss the report.
Dr Adam Bodnar, the Polish Ombudsman appointed a Deputy to address LGBTQ issues. In response, the Government sought to drastically reduce his budget. More recently, he spoke out about hate speech following the killing of the Mayor of Gdansk. He was then sued as an individual by the State TV Company.
The post of Ombudsman in Argentina has stood vacant for many years.
30 years ago in Ireland, Michael Mills, the country’s first Ombudsman, was highly critical of the Government of the day. It attempted to slash his budget in response.
Threats to Ombudsman Offices are not new, but have increased notably in recent years, not least because of the rise of populism.
The International Ombudsman Institute is the only global Ombudsman organisation. We have almost 200 members in more than 90 countries worldwide. The IOI celebrated its 40th anniversary in 2018 but the institution of Ombudsman, as we currently know it dates back more than 200 years to its foundation in Sweden in 1809. The purpose of the Office, which remains relevant today, was to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch.
The classical Ombudsman model developed following the direction set by Denmark whose Office dates to 1955. This model is primarily concerned with maladministration. It provides an alternative to the courts, is independent, objective and free to the complainant. It can be regarded as the final stage in the formal complaint process short of access to the courts.
Ombudsman Offices consider whether the action of a public service provider is compliant with the law and whether the provider followed the appropriate process. However, they also look to see whether the outcome was fair, and whether it was just, so an Ombudsman Office can and will intervene when a court would find no failing. This is one of the important intrinsic advantages of the Ombudsman. Ombudsman Offices can also typically use a range of interventions to resolve complaints. A quick effective intervention is often the most valued by the complainant, but a full range of interventions up to and including formal investigations which are reported to the Parliament can help to secure redress for the individual or individuals who have suffered injustice while also highlighting failures where necessary and bringing about change in the way services are delivered.
The Ombudsman concept has proved to be incredibly adaptable and has taken on new powers and competences as it has spread around the globe. Its core values of independence, objectivity and fairness remain as relevant today as they were more than 200 years ago, but the changing face of our societies and our governance have enabled Ombudsman Offices to take advantage of new opportunities and to address new challenges. The role of the IOI in supporting the transfer of best practice and innovation is particularly important.
The Office of Ombudsman was not initially explicitly established as a human rights body, but human rights are at the heart of the work of all public services Ombudsman offices. The Ombudsman is a core component of the protections that all people should enjoy in a democratic state. Many Ombudsman offices are also the National Human Rights Institution in their country. Others, such as my own in Ireland, work alongside a separate NHRI and look at maladministration by public service providers. However, my Office, and others like it, have clearly stated that a breach of human rights by a body within their jurisdiction is always maladministration. This ensures that our Offices can play their part in ensuring that human rights are respected.
The IOI has supported the work of Ombudsman Offices in the field of human rights, not least by providing funding for the Northern Ireland Ombudsman’s Office who worked jointly with the Northern Ireland Human Rights Commission in the development of a toolkit for use in considering complaints. This approach ensures that staff in our offices are alert to the possibility that the action of a public service provider may have breached a complainant’s human rights, even if it would not otherwise have been considered to be maladministration because there was no breach of law or procedure, and they respond accordingly.
When the IOI was founded, one of the key figures saw the Office of the Ombudsman as a human rights body. However, at that time, none of the founding members were formally constituted as human rights institutions. However, in 2019, most members are and the IOI by-laws now make clear that we ourselves are a human rights organisation.
The development of Ombudsman institutions worldwide has had a key influence on this explicit recognition. In Africa, in Latin America and in Central and Eastern Europe, the development of new Ombudsman offices, often in countries with emerging democracies or in those returning to democracy, saw a strong trend towards combining the NHRI function with the Ombudsman’s Office.
The classic Ombudsman model greatly facilitates this. The Ombudsman should be independent of the Executive, and thus appointed by the Parliament or the Head of State following a vote in the Parliament.
This formal independence sits well with the Paris principles. A range of powers including the compellability of evidence and co-operation of officials, broad jurisdiction over public services and the capacity to report to the Parliament all ensure that Ombudsman Offices can be effective in undertaking human rights roles.
The development of the Venice Principles, which were adopted by the Venice Commission this year provide a parallel international standard for Ombudsman Offices which are complementary to the Paris Principles. The IOI is working to have these adopted as an international standard, beyond the members of the Venice Commission, as they are a means of ensuring that all compliant Ombudsman Offices are independent of government and the bodies in their jurisdiction and have the necessary powers and resources to effectively undertake their tasks.
Increasingly, Ombudsman Offices which are not NHRIs are taking on aspects of human rights jurisdiction. Many Children’s Ombudsman Offices are charged with ensuring compliance with the United Nations Convention on the Rights of the Child while many Offices also have taken on the role of National Preventative Mechanism under the Optional Protocol against Torture. One of the IOI’s roles is to provide training for members and NPM training has proved particularly valuable.
Ombudsman Offices doing their jobs will inevitably on occasions disagree with their governments. One of my predecessors as IOI President, former New Zealand Ombudsman Beverley Wakem, often talked about the Ombudsman’s role in “speaking truth to power”. Ombudsman institutions can play an important role in maintaining a focus on rights issues when the political atmosphere is highly charged. Having independent, objective, rights-based accountability bodies allows focus on the protection of rights when other voices are supressed. A great strength of the Ombudsman approach is the focus on individuals and their stories. This personalisation can be a sharp contrast to the sloganeering which often sadly characterises the populist voices who are becoming increasingly strident and influential.
Ombudsman Offices are careful not to occupy a political space. We draw our views and our strength from our casebooks. It is the evidence we examine objectively which provides the authority for our interventions. Generally, we make recommendations rather than have binding powers. The quality and thoroughness of our investigations is the basis for the acceptance of our recommendations by the providers of our public services. Having a broad mandate sometimes allows us to identify abuses of human rights where no complaint would be made on specifically human rights grounds.
The IOI is based here in Austria. The Secretariat is provided by the Austrian Ombudsman Board and funded by Austria. We provide many services to members, but in recent years, supporting colleagues under threat has become an increasingly significant part of our work.
We have developed a set of guidelines on the support of colleagues under threat. Threats can take many forms. Some African colleagues require personal protection because of threats to their lives. Often, though, the threats are more insidious. We have heard about reductions in finance. A variation is the assignment of new duties, without the necessary resources to undertake them. Delays in appointments also take place, as well as appointing individuals who may be seen to be more compliant. Undermining the institution through public statements, restricting access to Parliament and refusing to implement recommendations are also means by which the Office can be undermined.
The tools available to us in response can be effective.
In the case of the Slovak Ombudsman, after the Parliament refused to discuss the report, the IOI intervened with the President of the Parliament. Ultimately, the report was discussed.
When the Polish Ombudsman, Dr Adam Bodnar first experienced pushback from his Government they sought to undermine the work of his Office by threatening to cut the budget of his office to an extent which would have greatly restricted his work. The IOI sent a delegation to Poland to meet with key players, including NGOs, Government Ministers, the judiciary and international agencies. A formal report was produced and launched with a press conference, which received very considerable media coverage in Poland. His Office’s budget was not cut in the manner that had been threatened.
Subsequently, there have been many further threats to the independence of his Office and the IOI has joined delegations of other international agencies in visiting Poland to show solidarity.
The tools available to us include:
In conclusion, the Ombudsman concept has proved a hugely successful mechanism for holding Government to account. It has delivered on its original intention of tackling the power imbalance between the individual and the State. It has found redress for individuals, and also brought about improvements to services and the law. It has always operated in a human rights space, but over time, has done so more explicitly and to great effect. It continues to innovate and evolve in the face of the changing challenges and opportunities it faces. It has been embedded into growing numbers of democratic countries as a fundamental, and often constitutional protection for individuals.
Because of its success, it now faces growing threats to its independence and its effectiveness. Its future will depend on all of us being vigilant and intervening wherever threats materialise.