PUBLIC PROTECTOR ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY PROVISIONS

   1.   Short title

   2.   Interpretation

   3.   Guiding principles

PART II
OFFICE OF PUBLIC PROTECTOR

   4.   Office of Public Protector

   5.   Seal of Office of Public Protector

   6.   Functions of Public Protector

   7.   Deputy Public Protectors

   8.   Registrar

   9.   Chief Administrator, officers and staff of Office of Public Protector

   10.   Provincial directors and district investigations officers

   11.   Oath on appointment

   12.   Immunity

PART III
COMPLAINTS AND INVESTIGATIONS

   13.   Initiation of investigation

   14.   Consideration of complaint

   15.   Refusal to investigate complaint

   16.   Investigation by Public Protector

   17.   Referral of matter

   18.   Collaboration on investigations

   19.   Proceedings after investigation

PART IV
HEARINGS

   20.   Hearings

   21.   Proceedings at hearings

   22.   Evidence and procedure

   23.   Hearings in relation to judicial proceedings

   24.   Right of appearance of interested person

PART V
POWERS OF PUBLIC PROTECTOR

   25.   Powers of investigation

   26.   Powers of inspection

   27.   Search with warrant

   28.   Notices

   29.   Order by Public Protector

   30.   Power to summon witnesses

PART VI
FINANCIAL PROVISIONS

   31.   Funds of Office of Public Protector

   32.   Financial year

   33.   Accounts and audits

   34.   Annual report

PART VII
GENERAL PROVISIONS

   35.   Protection of vulnerable persons

   36.   Alternative dispute resolution

   37.   Reports and findings

   38.   Expenses and witness fees

   39.   Prohibition of publication or disclosure of information to unauthorised persons

   40.   Protection of witnesses

   41.   General offences

   42.   Rules

   43.   Regulations

   44.   Repeal of Cap. 39

   45.   Staff of Commission

 

AN ACT

to provide for the functions, powers, operations and financial management of the Office of Public Protector; provide for the initiation and investigation of complaints; repeal and replace the Commission for Investigations Act, 1991; and provide for matters connected with, or incidental to, the foregoing.

[7th June, 2016]

Act 15 of 2016.

PART I
PRELIMINARY PROVISIONS

1. Short title

This Act may be cited as the Public Protector Act.

2. Interpretation

In this Act, unless the context otherwise requires—

“administrative action” means an action relating to matters of administration, and includes—

   (a)   a decision and an act;

   (b)   a failure to make a decision or do an act, including a failure to provide a written statement of reasons for a decision;

   (c)   the formulation of a proposal or intention; and

   (d)   the making of a recommendation;

“Chief Administrator” means the person appointed as such under section 9;

“child” has the meaning assigned to it in the Constitution;

“Commission” means the Commission for Investigations established under section 4 of the repealed Act;

“court” means a court of competent jurisdiction;

“Deputy Public Protector” means the person appointed as such under section 7;

“document” means any device by means of which information is recorded or stored, and includes—

   (a)   anything on which there is writing;

   (b)   anything in which there are marks, figures, symbols or perforations having meaning for persons qualified to interpret them;

   (c)   anything from which sounds, images or writing can be produced, with or without the aid of anything else; or

   (d)   any of the things referred to in paragraphs (a) to (c) kept or maintained in electronic form;

“Emoluments Commission” means the Emoluments Commission established under the Constitution;

“equivalent qualification” means a qualification that is equal in function, value, significance or level or similar in effect or function;

“maladministration” means 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;

“oath” has the meaning assigned to it in the Constitution;

“Office of the Public Protector” means the Office of the Public Protector established under section 4;

“Parliamentary Service Commission” means the Parliamentary Service Commission established under Article 218 of the Constitution;

“practitioner” has the meaning assigned to it in the Legal Practitioners’ Act;

“Public Protector” means the person appointed as such under the Constitution;

“Registrar” means the person appointed as such under section 8;

“repealed Act” means the Commission for Investigations Act;

“rules of natural justice” means the principles and procedures underlying the making of a decision or taking of an action by a State institution, which are that an act or decision should be unbiased, transparent and made in good faith; and that each party should have equal access to the person taking the action or making the decision and should be aware of the facts of the decision and the documents that are used or adduced by the person taking the action or making the decision;

“Speaker” means the person elected as Speaker of the National Assembly under Article 82 of the Constitution;

“specialised systemic investigation” means an investigation that goes beyond the issue raised by a given complaint and looks at the underlying causes; and

“State institution” has the meaning assigned to it in the Constitution.

3. Guiding principles

The Office of the Public Protector shall, in fulfilling its mandate, act in accordance with the values and principles set out in the Constitution and shall be guided by the following principles—

   (a)   independence;

   (b)   integrity;

   (c)   accessibility;

   (d)   impartiality;

   (e)   professionalism; and

   (f)   transparency.

PART II
OFFICE OF PUBLIC PROTECTOR

4. Office of Public Protector

   (1) There is established the Office of the Public Protector which shall be headed by the Public Protector as provided under the Constitution.

   (2) The Office of the Public Protector consists of Deputy Public Protectors, the Registrar, Chief Administrator and other officers and staff appointed pursuant to sections 7, 8, 9 and 10 respectively.

   (3) The Deputy Public Protectors, Registrar, Chief Administrator, officers and other staff of the Office of the Public Protector shall not in the performance of their functions under this Act, be subject to the direction or control of a person or authority other than the Public Protector.

5. Seal of Office of Public Protector

   (1) The seal of the Office of the Public Protector shall be such device as may be determined by the Public Protector and shall be kept by the Registrar.

   (2) The affixing of the seal shall be authenticated by the Public Protector or a Deputy Public Protector, the Registrar or any other person authorised in that behalf by the Public Protector.

   (3) A contract or instrument which, if entered into or executed by a person not being a body corporate, would not be required to be under seal, may be entered into or executed without seal on behalf of the Public Protector by the Registrar or any other person generally or specifically authorised by the Public Protector in that behalf.

   (4) A document purporting to be under the seal of the Office of the Public Protector or issued on behalf of the Public Protector shall be received in evidence and shall be deemed to be so executed or issued, as the case may be, without further proof, unless the contrary is proved.

6. Functions of Public Protector

   (1) The Public Protector shall perform such functions as are prescribed in the Constitution.

   (2) Despite the generality of sub-section (1), the functions of the Public Protector are to—

   (a)   consider the administrative actions, practices and procedures of State institutions and make recommendations to the State institutions—

      (i)   on appropriate ways of addressing the effects of inappropriate administrative actions; and

      (ii)   for the improvement of the practices and procedures;

   (b)   prevent and take necessary and effective measures for the prevention of maladministration in State institutions, in particular measures for—

      (i)   examining the practices and procedures of State institutions in order to facilitate the discovery of opportunities of maladministration and secure the revision of methods of work or procedures which in the opinion of the Public Protector may be prone or conducive to maladministration;

      (ii)   advising State institutions on ways and means of preventing maladministration, and on changes in methods of work or procedures of such State institutions compatible with the effective performance of their duties, which the Public Protector considers necessary to reduce the likelihood of occurrence of maladministration;

      (iii)   disseminating information on the evil and dangerous effects of maladministration on society; and

      (iv)   enlisting and fostering public confidence and support against maladministration;

   (c)   initiate, receive and investigate complaints of alleged or suspected maladministration;

   (d)   investigate any complaint of human rights arising from maladministration or any conduct which the Public Protector has reasonable grounds to believe may be connected with, or conducive to, maladministration;

   (e)   be the lead agency in matters of combating maladministration;

   (f)   adopt and strengthen mechanisms for educating the public to respect the public good and public interest, and in particular—

      (i)   create awareness in the fight against maladministration and related offences;

      (ii)   develop educational and other programmes for the sensitisation of the media;

      (iii)   promote an environment for the respect of ethics; and

      (iv)   disseminate information and sensitise the public on the negative effects of maladministration;

   (g)   provide information or assistance to State institutions for the improvement of administrative practices and procedures;

   (h)   monitor and evaluate administrative activities and standards in State institutions and issue reports on matters of public interest;

   (i)   promote public awareness of policies and administrative procedures on matters relating to administrative justice;

   (j)   advise Government on good administrative practices; and

   (k)   perform any other functions as necessary or incidental to the performance of its functions under this Act or as may be prescribed under any written law.

   (3) The Public Protector shall, in the performance of the Public Protector’s functions—

   (a)   facilitate capacity building in the handling of complaints arising from maladministration;

   (b)   coordinate or cooperate, as applicable, with other institutions so as to implement an integrated approach to the prevention and eradication of maladministration; and

   (c)   consult, cooperate and exchange information with appropriate bodies of other countries that are authorised to conduct inquiries or investigations in relation to maladministration.

   (4) The Public Protector may investigate an administrative action despite a provision in any written law to the effect that the action or decision complained of is final.

   (5) In sub-section (4), “final” in relation to an action or decision under this section means that the action or decision is not subject to appeal, challenge or review.

7. Deputy Public Protectors

   (1) The Parliamentary Service Commission shall, on the recommendation of the Public Protector, appoint two Deputy Public Protectors to assist the Public Protector in the exercise of the Public Protector’s functions under the Constitution and this Act.

   (2) One Deputy Public Protector shall be responsible for the formulation of policy on specialised systemic investigations on maladministration, and the other Deputy Public Protector shall be responsible for the formulation of policy on investigations on general maladministration.

   (3) Despite sub-section (2), the Deputy Public Protectors shall perform such functions as may be assigned to them by the Public Protector.

   (4) A person qualifies for appointment as Deputy Public Protector if that person—

   (a)   holds a degree, or an equivalent qualification, from a higher education institution established, registered or declared under the Higher Education Act, 2013; and

   (b)   has at least 10 year’s experience in—

      (i)   finance;

      (ii)   public administration; or

      (iii)   law.

8. Registrar

   (1) There shall be a Registrar of the Office of the Public Protector who shall be appointed by the Parliamentary Service Commission on the recommendation of the Public Protector.

   (2) A person shall be appointed as Registrar if the person is a practitioner with five years legal experience.

   (3) The Registrar shall, subject to this Act—

   (a)   issue summonses, search warrants, arrest warrants and orders made by the Public Protector;

   (b)   receive complaints from complainants against State institutions;

   (c)   receive submissions from State institutions when requested for by the Public Protector;

   (d)   communicate to the complainant and to a State institution the decisions and orders of the Public Protector;

   (e)   keep a record of the investigations and proceedings carried out by the Public Protector;

   (f)   keep, or cause to be kept and maintained, a register of all orders, decisions and any other documents of the Public Protector;

   (g)   have the custody, and keep an account of all fees and other monies payable or paid to the Public Protector, and shall keep proper accounts thereof;

   (h)   administer oaths to witnesses, complainants and State institutions that appear before the Public Protector; and

   (i)   perform such other functions and exercise such other powers as may be conferred by rules made under section 43 or any other written law.

9. Chief Administrator, officers and staff of Office of Public Protector

   (1) The Parliamentary Service Commission shall, on the recommendation of the Public Protector, appoint a Chief Administrator, officers and other staff to assist the Public Protector in the performance of the Public Protector’s functions.

   (2) The Chief Administrator shall be—

   (a)   the controlling officer of the office of the Public Protector; and

   (b)   responsible for the management and administration of the Office of the Public Protector.

   (3) An officer shall have such powers, functions and duties as provided for, or as delegated to the officer by the Public Protector under this Act.

   (4) Despite sub-section (1), the Public Protector may appoint such experts and assessors, not being officers referred to in sub-section (1), as are necessary to assist the Public Protector to carry out the Public Protector’s functions.

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