Trevor Munroe | Advocacy Matters: Entrenching the Political Ombudsman’s office

Wednesday June 2, 2021, was an important day for all of us Jamaicans concerned with the decline in trust and confidence in our democratic institutions and desirous of strengthening Jamaica’s democracy. On that day, the Office of the Political Ombudsman launched two important reports: the 2020 General Election Campaign Review Report and the 2020 General Election Review Summary.

These reports reflected not only the opinions of this important Office but also the findings, conclusions, and recommendations of three important forums held in October 2020. These forums brought together participants, including me, drawn from civil society, the political parties, government entities, academia, the Jamaica Constabulary Force, faith-based groups, various youth organisations, and the media. We all gathered with the purpose of reviewing and understanding the 2020 General Elections and to discuss issues that went beyond that particular election. We had the opportunity to make our input through open-ended moderated discussion, through a questionnaire, and through a poll administered during each section of the forum.

The findings, conclusions, and recommendations coming from this historic initiative are vital in the uphill task of strengthening Jamaican democracy. Of course, these recommendations from the forum are not alone in advancing that objective. There are very important proposals in the two Annual Reports of the Integrity Commission, to cite one other example.

Among the key findings coming from this broad cross section of Jamaican society was that 88 per cent of respondents say that the political ombudsman’s mandate to investigate breaches of the Code of Political Conduct should be extended to include the power to report breaches of electoral laws to the director of public prosecutions. Similarly, 80 per cent of participants say that the political ombudsman should be empowered to impose agreed fines for breaches and go beyond the current responsibilities to make recommendations to party leaders. Among the 23 recommendations coming from the forum, three were of critical importance:

1. The Political Ombudsman Commission should be entrenched in the Jamaican Constitution.

2. The Code of Conduct should be strictly enforced by statute and become law. It should no longer be only a gentleman’s agreement.

3. Legislation for campaign financing should be strengthened to more critically address the sources and use of funds by parties.

WEAKENED

Let us be clear in respect of each of these. As it stands now, the Office of the Political Ombudsman could be abolished by a simple majority vote in Parliament, by any Cabinet or prime minister who would like to have more power and fewer restraints on his or her authority. Or the Office could be weakened by reducing even further its limited authority and budgetary allocations. This vulnerability to prime ministerial power also applies to other commissions of Parliament. The Electoral Commission of Jamaica, the Integrity Commission, the Office of the Public Defender, and INDECOM could be similarly weakened or abolished to the detriment of our democratic systems. Let me hasten to say not so of the Office of the Auditor General as this office is entrenched and protected in the Constitution; no parliamentary majority, however hostile to the findings of the auditor general’s investigations can get rid of the office. Further than that, misguided or malevolent members of a Public Accounts Committee can go beyond legitimate questioning to hounding a particular auditor general, but they cannot get rid of the auditor general except in circumstances where that officer is guilty of egregious misbehaviour.

The recommendation to make the Political Code of Conduct law speaks for itself. Breaking the Code would then become breaking the law, with attendant penalties when the offender is found guilty. Regarding campaign financing, disclosure of the sources of funding, not just during the election period but year-round, which happens in the United Kingdom and the United States, and would allow the electorate to know who is paying the piper and therefore likely to call the tune.

Perhaps you might feel that the danger of weakening or abolishing parliamentary commissions like the Office of the Political Ombudsman is far-fetched and a peril we are unlikely to ever face. Consider this, however. About a decade ago, a resolution was moved in Jamaica’s Parliament that “the Office of the Political Ombudsman be declared redundant”. This resolution was seriously considered by the Sessional Select Committee of the House of Representatives on Human Resource of Social Development. To say the least, this effort to abolish the Office was met with alarm and opposition from a wide range of organisations reflecting disconcert. I appeared before the Sessional Committee and made submissions from National Integrity Action (NIA). In letters sent to the House Committee, both the Private Sector Organisation of Jamaica (PSOJ) and the Jamaica Civil Society Coalition (JCSC) expressed full endorsement of the submission by NIA. In that submission, we pointed out then, and it remains true to date, that the most extreme forms of non-compliance, for example, in the use of violence in campaigns, had significantly diminished. However, breaches of the Code were still very much evident then and 10 years later today, 66 per cent of participants in the Ombudsman’s forum reported observing violations of the Code of Conduct. However, equally obviously, we pointed out then, and it remains true today, that one of the major requirements of the Code is mainly that “the parties eschewed the practice of political tribalism”, which still remains far from fulfilment.

OPPOSITE DIRECTION

Most important of all, the administration of then Prime Minister Bruce Golding, in resisting the idea that the Office of the Political Ombudsman should be declared redundant, went in the opposite direction. The prime minister reported in September 2011 to the Council of the Partnership for Transformation on “a Cabinet submission seeking approval to issue drafting instructions to legislate offences and penalties for breaches to the Code of Political Conduct”.

Almost 10 years later, that Cabinet submission remains in “file 13”, gathering dust. Far more significant, the September 2011 meeting of the Council received a further update relating to legislations providing for a constitutional amendment to give constitutional protection to the Office of the Political Ombudsman, the Office of the Public Defender, the then Office of the Contractor General (now incorporated in the Integrity Commission), and the Electoral Commission of Jamaica. The update indicated that this constitutional amendment followed on discussions between the prime minister and the Opposition. Most significantly, the bill was proposed to be tabled in October 2011. It should be noted that our current prime minister, Andrew Holness, and other members of today’s Cabinet were also then members of the Cabinet of Prime Minister Bruce Golding. Ten years later, the Office of the Political Ombudsman is having to recommend that the Code of Conduct be made law and the Ombudsman’s Office be entrenched in the Constitution.

The main lesson is this: important recommendations to improve governance are necessary but far from sufficient to secure that objective. What is required thereafter is sustained advocacy to ensure that recommendations in the public interest do not fall off the parliamentary agenda. For this reason, we should all be encouraged and lend support to the actions to follow up on the 2020 Election Reports announced by the political ombudsman. Additionally, the preparation of a brief to go to various organisations, including the political parties and ultimately to the Cabinet, to implement the recommendations in the report. We all need to learn that advocacy that is comprehensive and sustained, matters.

- Professor Trevor Munroe is principal director, National Integrity Action. Send feedback to info.niajamaica.org or columns@gleanerjm.com.