CHAPTER IX - THE OMBUDSMAN

Return to: Government and the Constitution

96 Office of Ombudsman

(1)

There shall be an Ombudsman, whose office shall be a public office.

(2)

The Ombudsman shall be appointed by the President, acting after consultation

with the Prime Minister, the Leader of the Opposition and such other persons, if any, as appear

to the President, acting in his own deliberate judgement, to be leaders of parties in the

Assembly.

(3)

No person shall be qualified for appointment as Ombudsman if he is a member of,

or a candidate for election to, the Assembly or any local authority or is a local government

officer, and no person holding the office of Ombudsman shall perform the functions of any

other public office.

(4)

The offices of the staff of the Ombudsman shall be public offices and shall consist

of that of a Senior Investigations Officer and such other offices as may be prescribed by the

President, acting after consultation with the Prime Minister.

[Amended 48/91]

97 Investigations by Ombudsman

(1)

Subject to this section, the Ombudsman may investigate any action taken by any

officer or authority to which this section applies in the exercise of administrative functions of

that officer or authority, in any case in which a member of the public claims, or appears to the

Ombudsman, to have sustained injustice in consequence of mal-administration in connection

with the action so taken and in which -

(a)

a complaint under this section is made;

(b)

he is invited to do so by any Minister or other member of the Assembly; or

(c)

he considers it desirable to do so of his own motion.

(2)

This section applies to the following officers and authorities -

(a)

any department of the Government;

(b)

the Police Force or any member thereof;

(c)

the Mauritius Prison Service or any other service maintained and controlled

by the Government or any officer or authority of any such service;

(d)

any authority empowered to determine the person with whom any contract or

class of contracts is to be entered into by or on behalf of the Government or

any such officer or authority;

(e)

such other officers or authorities as may be prescribed by Parliament

Provided that it shall not apply in relation to any of the following officers and

authorities -

(i)

the President or his personal staff;

(ii)

the Chief Justice;

(iii)

any Commission established by this Constitution or its staff;

(iv)

the Director of Public Prosecutions or any person acting in accordance

with his instructions;

(v)

any person exercising powers delegated to him by the Public Service

Commission or the Police Service Commission, being powers the

exercise of which is subject to review or confirmation by the

Commission by which they were delegated.

(3)

A complaint under this section may be made by an individual, or by any body of

persons whether incorporated or not, not being -

(a)

an authority of the Government or a local authority or other authority or body

constituted for purposes of the public service or local government; or

(b)

any other authority or body whose members are appointed by the President or

by a Minister or whose revenues consist wholly or mainly of money provided

from public funds.

(4)

Where any person by whom a complaint might have been made under subsection

(3) has died or is for any reason unable to act for himself, the complaint may be made by his

personal representative or by a member of his family or other individual suitable to represent

him; but except as specified in this subsection, a complaint shall not be entertained unless

made by the person aggrieved himself.

(5)

The Ombudsman shall not conduct an investigation in respect of any complaint

under this section unless the person aggrieved is resident in Mauritius (or, if he is dead, was so

resident at the time of his death) or the complaint relates to action taken in relation to him

while he was present in Mauritius or in relation to rights or obligations that accrued or arose in

Mauritius.

(6)

The Ombudsman shall not conduct an investigation under this section in respect

of any complaint under this section in so far as it relates to -

(a)

any action in respect of which the person aggrieved has or had a right of

appeal, reference or review to or before a tribunal constituted by or under any

law in force in Mauritius; or

(b)

any action in respect of which the person aggrieved has or had a remedy by

way of proceedings in any court of law

Provided that -

(i)

the Ombudsman may conduct such an investigation notwithstanding

that the person aggrieved has or had such a right or remedy if satisfied

that in the particular circumstances it is not reasonable to expect him

to avail himself or to have availed himself of that right or remedy; and

(ii)

nothing in this subsection shall preclude the Ombudsman from

conducting any investigation as to whether any of the provisions of

Chapter II has been contravened.

(7)

The Ombudsman shall not conduct an investigation in respect of any complaint

made under this section in respect of any action if he is given notice in writing by the Prime

Minister that the action was taken by a Minister in person in the exercise of his own deliberate

judgement.

(8)

The Ombudsman shall not conduct an investigation in respect of any complaint

made under this section where it appears to him -

(a)

that the complaint is merely frivolous or vexatious;

(b)

that the subject-matter of the complaint is trivial;

(c)

that the person aggrieved has no sufficient interest in the subject-matter of the

complaint; or

(d)

that the making of the complaint has, without reasonable cause, been delayed

for more than 12 months.

(9)

The Ombudsman shall not conduct an investigation under this section in respect

of any matter where he is given notice by the Prime Minister that the investigation of that

matter would not be in the interests of the security of Mauritius.

(10)

In this section, "action" includes failure to act.

[Amended 2/82; 48/91]

98 Procedure in respect of investigations

(1)

Where the Ombudsman proposes to conduct an investigation under section 97, he

shall afford to the principal officer of any department or authority concerned, and to any other

person who is alleged to have taken or authorised the action in question, an opportunity to

comment on any allegations made to the Ombudsman in respect of it.

(2)

Every such investigation shall be conducted in private but, except as provided in

this Constitution or as prescribed under section 102, the procedure for conducting an

investigation shall be such as the Ombudsman considers appropriate in the circumstances of the

case; and without prejudice to subsection (1), the Ombudsman may obtain information from

such persons and in such manner, and make such enquiries, as he thinks fit, and may determine

whether any person may be represented, by counsel or attorney or otherwise, in the

investigation.

99 Disclosure of information

(1)

For the purposes of an investigation under section 97, the Ombudsman may

require any Minister, officer or member of any department or authority concerned or any other

person who in his opinion is able to furnish information or produce documents relevant to the

investigation to furnish any such information or produce any such document.

(2)

For the purposes of any such investigation, the Ombudsman shall have the same

powers as the Supreme Court in respect of the attendance and examination of witnesses

(including the administration of oaths and the examination of witnesses abroad) and in respect

of the production of documents.

(3)

No obligation to maintain secrecy or other restriction upon the disclosure of

information obtained by or furnished to persons in the public service imposed by any law in

force in Mauritius or any rule of law shall apply to the disclosure of information for the

purposes of any such investigation, and the State shall not be entitled in relation to any such

investigation to any such privilege in respect of the production of documents or the giving of

evidence as is allowed by law in legal proceedings.

(4)

No person shall be required or authorised by virtue of this section to furnish any

information or answer any question or produce any document relating to proceedings of the

Cabinet or any committee of Cabinet, and for the purposes of this subsection, a certificate

issued by the Secretary to the Cabinet with the approval of the Prime Minister and certifying

that any information, question or document so relates shall be conclusive.

(5)

The Attorney-General may give notice to the Ombudsman, with respect to any

document or information specified in the notice, or any class of documents or information so

specified, that in his opinion the disclosure of that document or information, or of documents

or information of that class, would be contrary to the public interest in relation to defence,

external relations or internal security; and where such a notice is given nothing in this section

shall be construed as authorising or requiring the Ombudsman or any member of his staff to

communicate to any person for any purpose any document or information specified in the

notice, or any document or information of a class so specified.

(6)

Subject to subsection (3), no person shall be compelled for the purposes of an

investigation under section 97 to give any evidence or produce any document which he could

not be compelled to give or produce in proceedings before the Supreme Court.

[Amended 48/91]

100 Proceedings after investigation

(1)

This section shall apply in every case where, after making an investigation, the

Ombudsman is of opinion that the action that was the subject-matter of investigation was -

(a)

contrary to law;

(b)

based wholly or partly on a mistake of law or fact;

(c)

unreasonably delayed; or

(d)

otherwise unjust or manifestly unreasonable.

(2)

Where in any case to which this section applies the Ombudsman is of opinion -

(a)

that the matter should be given further consideration;

(b)

that an omission should be rectified;

(c)

that a decision should be cancelled, reversed or varied;

(d)

that any practice on which the act, omission, decision or recommendation was

based should be altered;

(e)

that any law on which the act, omission, decision or recommendation was

based should be reconsidered;

(f)

that reasons should have been given for the decision; or

(g)

that any other steps should be taken,

the Ombudsman shall report his opinion, and his reasons, to the principal officer of any

department or authority concerned, and may make such recommendations as he thinks fit; he

may request that officer to notify him, within a specified time, of any steps that it is proposed to

take to give effect to his recommendations; and he shall also send a copy of his report and

recommendations to the Prime Minister and to any Minister concerned.

(3)

Where within a reasonable time after the report is made no action is taken which

seems to the Ombudsman to be adequate and appropriate, the Ombudsman, if he thinks fit, after

considering any comments made by or on behalf of any department, authority, body or person

affected, may send a copy of the report and recommendations to the Prime Minister and to any

Minister concerned, and may thereafter make such further report to the Assembly on the matter

as he thinks fit.

101 Discharge of functions of Ombudsman

(1)

In the discharge of his functions, the Ombudsman shall not be subject to the

direction or control of any other person or authority and no proceedings of the Ombudsman

other than proceedings under section 102A, shall be called in question in any court of law.

(2)

In determining whether to initiate, to continue or discontinue an investigation

under section 97, the Ombudsman shall act in accordance with his own discretion, and any

question whether a complaint is duly made for the purposes of that section shall be determined

by the Ombudsman.

(3)

The Ombudsman shall make an annual report to the President concerning the

discharge of his functions, which shall be laid before the Assembly.

[Amended 48/91]

102 Supplementary and ancillary provision

There shall be such provision as may be prescribed for such supplementary and

ancillary matters as may appear necessary or expedient in consequence of any of the provisions

of this Chapter, including (without prejudice to the generality of the foregoing power)

provision -

(a)

for the procedure to be observed by the Ombudsman in performing his

functions;

(b)

for the manner in which complaints under section 97 may be made (including

a requirement that such complaints should be transmitted to the Ombudsman

through the intermediary of a member of the Assembly);

(c)

for the payment of fees in respect of any complaint or investigation;

(d)

for the powers, protection and privileges of the Ombudsman and his staff or

of other persons or authorities with respect to any investigation or report by

the Ombudsman, including the privilege of communications to and from the

Ombudsman and his staff; and

(e)

the definition and trial of offences connected with the functions of the

Ombudsman and his staff and the imposition of penalties for such offences.

102A Allegation of fraud or corruption

(1)

(a)

Notwithstanding the other provisions of this Chapter and subject to

subsection (2), the Ombudsman may investigate any allegation of fraud or

corruption against a person, other than a Judge of the Supreme Court, who

holds or has held an office specified in the Fourth Schedule, concerning an

act or omission related to the exercise of the duties of that person.

(b)

The Ombudsman may investigate any allegation of fraud or corruption under

paragraph (a) -

(i)

on a complaint made to him in writing;

(ii)

of his own motion.

(c)

In paragraph (a), "allegation of fraud or corruption" means an allegation that

the person concerned has by an act or omission rendered himself liable to be

prosecuted for an offence involving fraud or corruption which is punishable

under the Criminal Code or such other enactment as may be prescribed.

(2)

The Ombudsman shall not conduct an investigation in respect of an allegation

made under subsection (1) where it appears to him that -

(a)

the allegation is merely frivolous or vexatious;

(b)

the subject-matter of the allegation is trivial;

(c)

the making of the allegation has, without reasonable cause, been delayed for

more than twelve months.

(3)

Where the Ombudsman proposes to conduct an investigation under this section,

he shall afford to the person against whom the allegation is made an opportunity to comment

thereon.

(4)

Where after hearing the person concerned and after making such preliminary

investigation as he may deem fit, the Ombudsman is of the opinion that the allegation is

groundless, he shall -

(a)

put an end to the investigation;

(b)

inform the maker of the allegation as well as the person against whom the

allegation was made accordingly;

(c)

make a report to the President accordingly.

(5)

The Ombudsman may obtain information from such person and in such manner,

and make such enquiries, as he thinks fit.

(6)

Where after making a preliminary investigation, the Ombudsman is of the opinion

that a full enquiry is necessary, he shall inform the maker of the allegation as well as the person

against whom the allegation was made accordingly.

(7)

(a)

The Ombudsman shall, when making a full enquiry under this section, be

assisted by two assessors appointed on such terms and conditions as the

President may deem fit.

(b)

Any assessor appointed under this subsection shall take such oath as may be

prescribed.

(8)

The procedure for conducting a preliminary investigation or a full enquiry shall be

such as the Ombudsman considers appropriate in the circumstances of the case.

(9)

Section 99 shall apply to a full enquiry under this section.

(10)

Subject to the other provisions of this section, the Ombudsman shall be bound by

the law of evidence as is applicable in proceedings before the Supreme Court.

(11)

Any complaint made in writing to the Ombudsman or any evidence given before

the Ombudsman shall not, where made or given in good faith, give rise to any civil or criminal

proceedings.

(12)

On the completion of an enquiry under this section, the Ombudsman shall make a

report to the President.

(13)

(a)

On receipt of a report under subsection (12), the President shall submit a

copy thereof to the Prime Minister.

(b)

The Prime Minister shall, within 3 months of the receipt of a copy of the

report, lay it before the Assembly.

[Added 48/91]