Maladministration is not defined either by the Constitution or in Schedule 5. However, Paragraph 6 (1) of Schedule 5 does offer a strong indication of what would be considered maladministration where the Ombudsman’s investigation leads to any of the opinions set out in the paragraph.
According to the Schedule, after investigating the complaint, the Ombudsman can form the opinion that the action taken by the public officer or authority:
- was contrary to law;
- was based on a mistake of law or fact, or a wrongful assessment of facts based on an improper exercise of a discretionary power or an exercise of a discretionary power based on irrelevant considerations;
- was based partly on a mistake of law and facts
- was an improper refusal to exercise a discretionary power;
- was based on an exercise or improper use of authority or power;
- was in accordance with the law but the law is unreasonable, unjust oppressive or discriminatory;
- was otherwise , in all circumstances wrong;
- should be cancelled, varied or given further consideration.
Or that:
- the reasons for the action should have been given;
- there was unreasonable delay in taking the decision;
- there was an omission that needs to be rectified;
- the law or practice on which the action is based should be reconsidered;
- the practice pr pattern of conduct of the public authority or person is contrary to law or unreasonable, unjust, harsh, oppressive or discriminatory; or
- the allegation of fraud or corruption is well founded.
All these would be considered to be acts of maladministration.
What can the ombudsman do where maladministration is found?
If, at the conclusion of an investigation, the Ombudsman forms the opinion that any of the elements of maladministration have been found, the opinion will be reported and reasons given together with any recommendations or remedies considered fit to make to the respondent public authority (Paragraph 6(1))
The Ombudsman can recommend:
- that an omission or a delay be rectified;
- that a decision or recommendation be altered or cancelled;
- that reasons should be given for actions and decisions taken;
- that a practice, procedure or course of conduct should be altered;
- that a statute or regulation should be reviewed;
- how to improve procedures and policies.
The Ombudsman must report the opinion and the reasons together with any recommendation and remedy the Ombudsman considers fit to make to the public authority investigated and also inform the President or relevant minister through a copy of the report.
The report can set out a time limit within which it is reasonable for the report to be acted upon.
Where the Ombudsman is of the opinion that the report is not adequately acted upon within the time limit given, or where no time limit is stated, within a reasonable time that the Ombudsman believes is reasonable, the Ombudsman can submit the report and recommendations to the President and the National Assembly, together with any further observations she thinks fit to make along with any comments that may have been made by the respondent public authority (Paragraph 6(5)).
The Ombudsman must also inform the complainant of the result of every complaint received.