“SETTING THE RECORD STRAIGHT"


by  NEMO YALO

Introduction

This article replies to the Ombudsman Commission’s paid public notice (The National, 10.10.16, page16) which responded to my article in the same paper (06.10.16, page 37). In my article I answered the question ‘is an Ombudsman conferred arbitrary powers by law to stop investigations into alleged or suspected misconduct in office under the Leadership Code’? The article was prompted by an allegation that an Ombudsman had made a decision unilaterally stopping all leadership investigations under the Leadership Code pending the appointment of the Chief Ombudsman. The Commission has stated in bold in the second paragraph of its article: “The matters alluded to by Mr Yalo are internal discussions awaiting formal internal legal advice and not ‘matters of public interests’ nor is it meant for public discussions”. This article informs the public that I stand by my statement.

The Commission’s denial
The Commission denied the allegation I raised and further stated that there is no such intention. It further expressed concern as to how such an information reached me stating “… all members, officers and employees of the Commission took oath to maintain secrecy in relation to the affairs of the Commission and promise on the Bible not to directly or indirectly communicate or divulge any information that comes to their knowledge in the performance of their functions except under compulsion or obligation of law or as provided by law”. I will address this in detail.
The Commission appealed for its internal administrative processes to be respected. It called for former Ombudsman and former officers to uphold rule of law and maintain high degree of independence as they hold offices or positions of trust and are bound by law and good conscience not to be abusing that trust by entering into debates to allow other interests to conflict with the duty to the people. In that vein I have been urged “to carefully consider [my] position and abstain from any further media reports on information that came to [my] knowledge unlawfully”.

My reply
As I stated I stand by my article. Prior to publishing the article I personally spoke to two officials from within the Ombudsman Commission on specific dates. I personally spoke to one of them by phone. I asked a specific question if the allegation was true and the official explained to me the specifics of the allegation and the mode of transmission of the communication. I heard the expression of concern through the tone of the voice.

Keeping the record straight?
The Commission has expressly stated in bold that the issue I raised are “internal administrative discussions awaiting formal internal legal advice and not matters of public interest…” What the Commission appears to be telling the public is an admission that indeed there was such communication as I alleged but that it is a matter of internal administrative discussions awaiting formal legal advice. So if someone with relevant authority either allegedly made the decision or communicated such an intention seeking legal advice, the public is entitled to ask why make such a decision that is clearly in breach of the law and why harbor such an intention which is wrong in law.
If an Ombudsman allegedly makes a decision which is wrong in law or expresses in writing one’s intention which is wrong in law the Commission’s article failed to state the law that prohibits anyone from exposing it or publicly discussing it.
There is nothing in law that states that the Commission’s leadership investigations must be halted temporarily pending appointment of a Chief Ombudsman or an Ombudsman. The idea that such action can be taken administratively by the Commission cannot be and never can be in the contemplation of any member of the Commission or an officer or employee of the Commission. That is clearly wrong in law and is questionable.
Preservation of secrecy

The Commission referred to the Oath of secrecy sworn unto the Bible by an Ombudsman or officer or employee of the Commission upon taking office and that it was wrong for such information to have been communicated to me. For the readers’ benefit the oath of secrecy sworn by an Ombudsman or an officer or employee of the Commission are in similar terms: “I, . . . , a member of the Ombudsman Commission, do swear that I will at all times maintain secrecy in relation to the affairs of the Commission and, in particular, that I will not directly or indirectly communicate or divulge any information that comes to my knowledge in the performance of my functions as a member of the Commission, except under compulsion or obligation of law or as provided by law”. So help me God!” An officer or employee swears on oath: “I, . . . , (an officer or employee of the Ombudsman Commission, as the case requires) do swear that I will at all times maintain secrecy in relation to the affairs of the Commission and, in particular, that I will not directly or indirectly communicate or divulge any information that comes to my knowledge in the performance of my functions as an officer/employee of the Commission, except under compulsion or obligation of law or as provided by law. So help me God!”

Not all information is subject to secrecy
The law that an Ombudsman or an officer or employee is obliged to “at all times maintain secrecy in relation to the affairs of the Commission” is not without qualification. The words “in particular”, and “information that comes to [my] knowledge in the performance of [my] functions ” and “except under compulsion or obligation or law or as provided by law” qualify the secrecy requirement. In other words the oath of secrecy only applies to information acquired in the course of the performance of constitutional functions. Any such confidential information can be divulged if required by law or if ordered by a court of law.
The oath of secrecy implements Section 21 of the Organic Law on the Ombudsman Commission (OLOC). So the terms of the oath of secrecy must be read and understood in the context of or together with Section 21 to attain its proper purpose and meaning. Section 21 reads: “(1) The Commission may direct that any evidence given before it, or any document, paper or thing produced to it, be not published. (2) Any person who publishes or discloses to any person – (a) any evidence given before the Commission; or (b) any of the contents of any document, paper or thing, which the Commission has directed not to be published without the consent in writing of the Commission is guilty of an offence. Penalty: K1,000.00 or imprisonment for 12 months, or both”.

Clearly Section 21 requirement to keep information secret relates to any evidence, document, paper or thing produced to the Commission for the purposes of its investigations, i.e. its constitutional functions. If a leader is investigated by the Commission an Ombudsman or an officer is required to keep confidential the information which has been acquired for the purposes of such investigation. If, however, a senior officer of the Commission is investigated for a serious disciplinary offence, information obtained by the Commission for that purpose, although “relates to the affairs of the Commission” is not subject to Section 21 secrecy. The purpose and meaning of the oath of secrecy ought to be read and understood in its proper constitutional context and purpose. Any administrative decision or direction by an Ombudsman or an officer or an employee that is wrong in law does not fall within the ambit of Section 21 OLOC. However if for instance an Ombudsman is subject of leadership investigation and his or her alleged decision or direction is obtained by the Commission or an appropriate authority conducting investigations under the Leadership Code then such information is confidential. The information I received in my view does not fall within the ambit of Section 21 OLOC secrecy provision.

The Commission expressed concern that my article has the potential to diminish the integrity of the Commission. The Commission has admitted the issue I raised but qualifies its admission by saying that it is a “matter of internal discussions awaiting legal advice” and goes on to rely on its misconceived interpretation and application of the secrecy protection which I have discussed above. I would be the last person to undermine the integrity of the Commission. The public has long lost confidence in the Commission well before my article. Even the Supreme Court once criticized the Commission by saying that it is “sleeping at the wheel” whilst observing that there are citizens out there doing work that it is paid to do (by the people) year in year out. It should do more than offer verbal assurances through paid advertorial that it is steadfast in its resolve.

Secrecy or no secrecy someone in the Commission who one would expect to have received the information did receive such information and told me freely without hesitation. I have the phone number and the date when I received the call. That person knows and is probably smiling as he is reading this line. I did not wake up one morning thinking I should take a swipe at the Commission for no reason at all. So am I abusing my public trust or inciting baseless public debate as the Commission likes to assert? The public is the best judge. If the verdict sways against the Commission I am afraid its own “setting-the-record-straight” expensive paid one-page article offers little value to the diminishing public confidence and respect for it.

Investigation
Finally, whilst the Commission has on the one hand already determined that it is a confidential administrative matter and that there is no leadership code breach, it has, in the next breadth, invited me to lodge a complaint. I stated in my article that it should be taken as a complaint. Secondly that the Commission can on its own initiative investigate without anyone lodging a formal complaint, refer to Section 17 Organic Law on Duties and Responsibilities of Leadership. Its article shows that the Commission has already decided on the merits or otherwise of the allegation. How ironical it is then to invite me to lodge a complaint? The confusion is just another unnecessary invitation of public doubt in the confidence in and the respect for its integrity.

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