Seychelles 1993 Constitution (reviewed 2017)

SCHEDULE 5. OMBUDSMAN

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1. Subject to this Schedule, the Ombudsman may
   1. investigate an action taken by a public authority or the President, Vice-President, Minister, officer or member of the public authority, being action taken in the exercise of the administrative functions of the public authority in the circumstances specified in subparagraph (2);
   2. investigate an allegation of fraud or corruption in connection with the exercise by a person of a function of a public authority.
   3. assist an individual complainant in respect of legal proceedings in relation to a contravention of the provisions of the Charter;
   4. with leave of the Court hearing proceedings relating to a contravention of the provisions of the Charter, become a party to the proceedings;
   5. initiate proceedings relating to the constitutionality of a law or of the provisions of a law.
2. The Ombudsman shall investigate an action under sub-paragraph (1) (a)
   1. where the Ombudsman receives a complaint from a person or body alleging that the complainant has suffered a violation of the complainant’s fundamental rights or freedoms under the Charter, or an injustice, in consequence of a fault in the administration of a public authority or has been treated harshly or oppressively by the authority or the President, Vice-President or a Minister, officer or member of the authority in the exercise of the administrative functions of the authority;
   2. where the President, Vice-President or a Minister or member of the National Assembly requests the Ombudsman to investigate the action on the ground that the person or body specified in the request-
      1. has or may have suffered a violation of the person’s or body’s fundamental rights for freedoms under the Charter, or an injustice, in consequence of a fault in the administration of a public authority or of a fault of the President or Vice-President or a Minister, officer or member of the authority in the exercise of the administrative functions of the authority;
      2. has been treated harshly or oppressively by the authority or the President or Vice-President or a Minister, officer or member of the authority in the exercise of the administrative functions of the authority,/or on the ground that the practices or patterns of conduct of a public authority or the President or Vice-President or a Minister, officer or member of the authority in the exercise of the administrative functions of the authority appear to result in injustices or harsh, oppressive or unfair administration; or
   3. where the Ombudsman considers that it is necessary to investigate the action on the grounds specified in subsubparagraph (b), and an allegation under subparagraph (1) (b).
3. The Ombudsman shall not investigate or may discontinue an investigation of a complaint relating to an action referred to in subparagraph (1) (a) or an allegation under subparagraph (1) (b) where it appears to the Ombudsman that-
   1. the complaint or allegation is frivolous, vexatious or trivial or not made in good faith;
   2. the making of the complaint or allegation has, without reasonable cause, been delayed for more than twelve months;
   3. in the case of a complaint relating to subparagraph (1) (a), the complainant does not have sufficient interest in this subject matter of the complaint;
   4. in the case of a complaint relating to subparagraph (1) (a), the complainant has or had, by way of remedy under this Constitution or any other law, a right of appeal, objection or review on merits and the complainant has not exhausted the remedy, unless the Ombudsman believes that in the particular circumstances it is or was not reasonable to expect the complainant to exhaust or to have exhausted the remedy.
4. In this Schedule-
   • “action” includes a failure to act, an advice or a recommendation;
     
     “body” means a body of persons whether corporate or incorporate;

     “investigation” means an investigation in terms of this Schedule;

     “public authority” means a Ministry, a department division or agency of the Government or a statutory corporation or a limited liability company which is directly or ultimately under the control of Government or any other body which is carrying out a governmental function or service or a person or body specified by an Act.

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5. A limited liability company of which the Government holds not more than forty-nine per centum of its issued share capital shall not, for the purposes of subparagraph(4), be treated to be a limited liability company which is under the direct or ultimate control of the Government.

1. The Ombudsman shall not investigate an action referred to in paragraph 1 (1) (a)-
   1. in respect of a subject matter which the President or Vice-President or the relevant Minister certifies may affect the relation or dealing between the Government of Seychelles and any other Government or international organization, the security of the Republic or the investigation of crime;
   2. concerning the performance of a judicial function or a Justice of Appeal, Judge or person performing a judicial function;
   3. taken with respect or directions to a disciplinary force or a member of the force; or
   4. unless the person aggrieved is resident in Seychelles or the action was taken in respect of the person aggrieved while the person was present in Seychelles or in respect of rights or obligations that arose or accrued in Seychelles.
2. Subject to this Schedule, the Ombudsman has the same power as a judge of the Supreme Court in respect of the attendance of a person before the Ombudsman, the examination of any person in relation to an investigation, the production of a document or record relevant to an investigation and inspection of premises relevant to investigation.

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1. Subject to this paragraph, a person shall not refuse to answer any question or withhold any document, information, record or thing or refuse to make available to the Ombudsman any document, information, record or thing or refuse access to the Ombudsman to any premises relating to an investigation on the ground that the answering of the question or disclosure of the document, information, record or thing or the granting of access to any premises would be injurious to the public interest, contrary to a law or in breach of a privilege or an obligation, whether contractual or otherwise.
2. Where a certificate certifying that the answering of a question, the disclosure of document, information, record or thing, the making available of a document, record or information or thing or the granting of access to any premises would be contrary to public interest is issued by-
   1. the President-
      1. because it might prejudice the security of the Republic or international relations between the Government of Seychelles and any other Government or international organizations; or
      2. because it involves the disclosure of the proceedings of the Cabinet;
   2. the Attorney-General because it might prejudice the investigation or detection of crime,

   the Ombudsman shall not require a person to answer the question, disclose the document, information, record or thing, make available the document, information, record or thing or grant access to premises, as the case may be.

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1. The Ombudsman shall, when carrying out an investigation, act fairly and judicially and shall in particular, afford any public authority or person alleged to have taken or authorised an action or responsible for the administration of the public authority which is the subject of an investigation an opportunity to be heard.
2. Subject to subparagraph (1), the Ombudsman shall determine the procedures to be followed when conducting an investigation.

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1. Subject to subparagraph (7), where after an investigation the Ombudsman is of the opinion that-
   1. the action which was the subject of the investigation-
      1. was contrary to law;
      2. was unreasonable, unjust, oppressive or discriminatory;
      3. was based on a mistake of facts or a wrongful assessment of facts;
      4. was based partly on a mistake of law and facts;
      5. was based on an improper exercise of a discretionary power or an exercise of a discretionary power based on irrelevant considerations;
      6. was an improper refusal to exercise a discretionary power;
      7. was based on an exercise or improper use of authority or power.
      8. was in accordance with law but the law is unreasonable, unjust, oppressive or discriminatory;
      9. was otherwise, in all circumstances wrong;
      10. should be cancelled, varied or given further consideration; or
   2. reasons for the action which was the subject of the investigation should have been given;
   3. there was unreasonable delay before the decision or action which was the subject of the investigation was taken;
   4. there was an omission which needs to be rectified;
   5. the law or practice on which the action which is the subject of the investigation is based should be reconsidered;
   6. the practice or pattern of conduct of a public authority or the President, Vice-President a Minister, officer or member of the public authority which is the subject of the investigation is contrary to law or unreasonable, unjust, harsh, oppressive or discriminatory; or
   7. the allegation of fraud or corruption is well founded.

   the Ombudsman shall report the opinion and reasons together with any recommendation or remedy the Ombudsman considers fit to make to the President, Vice-President, Minister, officer, member or chief executive officer of the public authority, as the case may be.

2. The Ombudsman shall, where the report is not required to be sent to the President, Vice-President or Minister, send a copy of the report to the President and where relevant to the Vice-President and any relevant Minister.
3. The Ombudsman may specify in the report referred to in subparagraph (1) a time limit within which it is reasonable for the report to be acted upon.
4. Where a report submitted under subparagraph (1) is not, in the opinion of the Ombudsman, adequately acted upon-
   1. within the time specified in the report; or
   2. if no time has been specified, within such reasonable time as the Ombudsman is of the opinion is reasonable,

   the Ombudsman may submit the report and recommendation together with such further observations the Ombudsman thinks fit to make to the President and the National Assembly.

5. The Ombudsman shall attach to every report submitted to the President, Vice-President and the National Assembly under subparagraph (4) a copy of any comments made thereon by or on behalf of the chief executive officer of the public authority concerned or the President, Vice-President, Minister, officer or member of the public authority, as the case may be.
6. The Ombudsman shall not later than the thirty-first January in each year make a general report to the National Assembly with a copy to the President on the exercise of the functions of the Ombudsman under this Constitution during the previous year.

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1. For the purposes of the law of defamation, absolute privilege is attached to the publication of any matter by the Ombudsman or any other person acting under the authority of the Ombudsman.
2. The Ombudsman or any other person acting under the authority of the Ombudsman shall not be liable for anything done or omitted to be done in good faith in the performance or purported performance of the functions of the Ombudsman.