Chapter 10:18

Ombudsman Act

(Will be amended by the Judicial Service Act[Chapter7:18](No.10of2006)when it comes into operation)

Acts 16/1982, 24/1985, 8/1988, 1/1989, 3/1994, 4/1997, 22/2001 (s. 4).

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY Section

1. Short title.

PART II

OMBUDSMAN AND HIS STAFF

3. Qualifications of Ombudsman and Deputy Ombudsman.
4. Terms of office of Ombudsman and Deputy Ombudsman.
5. Conditions of service of Ombudsman and Deputy Ombudsman.
6. Staff of Ombudsman.
7. Oaths to be taken.

PART III

INVESTIGATIONS BY OMBUDSMAN

8. Additional functions of Ombudsman.
9. Investigations that Ombudsman may not undertake.
10. Initiation of investigation by Ombudsman.
11. Discretion of Ombudsman regarding investigations.

PART IV

PROCEDUREAND MANNER OF INVESTIGATIONS BY OMBUDSMAN

12. Manner of making complaint.
13. Complaint by person in mental institution.
14. Refusal to investigate.
15. Manner of conducting investigation.
16. Proceedings after investigation.
17. Reports by Ombudsman.
18. Reports, etc., of Ombudsman to be privileged.

SCHEDULES

First Schedule: Forces, Services, Institutions, Authorities and Bodies Subject to Investigation. Second Schedule: Officers and Authorities Excluded from Investigation.

AN ACT to make provision for the Ombudsman, the Deputy Ombudsman and the staff of the Ombudsman; to provide for their powers, duties and procedures; and to provide for matters incidental to or connected with the foregoing.

[Date of commencement: 10th September, 1982.]

WHEREAS sections 107 and 108 of the Constitution provide—

107 (1) There shall be an Ombudsman and, where the President has deemed it desirable, a Deputy Ombudsman, whose offices shall be public offices but shall not form part of the Public Service.

• The Ombudsman and Deputy Ombudsman shall be appointed by the President after consultation with the Judicial Service Commission.

(2a) If the appointment of an Ombudsman or Deputy Ombudsman is not consistent with any recommendation made by the Judicial Service Commission, the President shall cause Parliament to be informed as soon is practicable.

• The Deputy Ombudsman shall—
• assist the Ombudsman in the exercise of his functions and duties and the Ombudsman may authorize him to exercise any of his functions or duties on his behalf;
• act as Ombudsman whenever the office of the Ombudsman is vacant or the Ombudsman is for any reason unable to perform the functions of his office.

(4) An Act of Parliament may make provision for the qualifications and remuneration of the Ombudsman and the Deputy Ombudsman .

108 (1) The Ombudsman may investigate

• action taken by any officer, person or authority referred to in subsection (2) in the exercise of the administrative functions of that officer, person or authority in any case where it is alleged that a person has suffered injustice in consequence of that action and it does not appear that there is any remedy reasonably available by way of proceedings in a court or on appeal from a court; or
• allegations that any provision of the Declaration of Rights has been contravened by any officer, person or authority referred to in subsection (2).

(Subsection as substituted by s. 2 of Act No. 4 of 1997.)

• Subject to such exceptions and conditions as may be prescribed by or under an Act of Parliament, the provisions of subsection (1) shall apply in respect of any action taken by the following officers and authorities—
• any Ministry or department or any member of such Ministry or department; and
• such other persons or authorities as may be prescribed by or under an Act of Parliament for the purposes of this paragraph.
• An Act of Parliament may confer other functions on the Ombudsman, and may make provision for the exercise of his functions including, without prejudice to the generality of the foregoing, the officers and authorities whose actions are not subject to investigation by him. NOW, THEREFORE, be it enacted as follows:—

PART I

PRELIMINARY

1    Short title

This Act may be cited as the Ombudsman Act [Chapter 10:18].

                       2    Interpretation

In this Act—

“action” includes failure to act;

“local authority” means a municipal council, town council, local board or rural district council;

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act;

“Ombudsman”, in relation to any function exercisable by the Deputy Ombudsman in terms of subsection (3) of section 107 of the Constitution, includes the Deputy Ombudsman;

“pension benefit” means a pension, commutation of pension, gratuity or other like allowance or refund of pension contributions, including any interest payable thereon, for a person in respect of his service as the Ombudsman or the Deputy Ombudsman or in respect of any ill-health or injury arising out of and in the course of his official duties or for any spouse, child, dependant or personal representative of such a person in respect of such service, ill-health or injury;

“resident of Zimbabwe” means a person who in terms of the law is permitted to enter, be or remain in Zimbabwe but does not include a visitor to Zimbabwe;

“statutory body” means any corporate body established by or in terms of any enactment for special purposes and includes any company which is a subsidiary determined in accordance with section 143 of the Companies Act [Chapter 24:03] of such body.

PART II

OMBUDSMAN AND HIS STAFF

                       3     Qualifications of Ombudsman and Deputy Ombudsman

(1) A person shall not be qualified for appointment as the Ombudsman or the Deputy Ombudsman unless—

• he is or has been a judge in Zimbabwe or in a court having unlimited jurisdiction in civil or criminal matters in a country in which the common law is Roman-Dutch or English and English is an official language; or
• he is and has been for not less than seven years, whether continuously or not, qualified to practise as a legal practitioner—
  • in Zimbabwe; or
  • in a country in which the common law is Roman-Dutch or English and English is an official language;

or

• he is or has been a regional magistrate in terms of the Magistrates Court Act [Chapter 7:10]; or
• he is or has been a Secretary of the Cabinet or of a Ministry; or
• in the opinion of the President he is a person of ability and experience and distinguished in the public life of Zimbabwe.
• In computing, for the purposes of paragraph (b) of subsection (1), the period during which any person has been qualified to practise as a legal practitioner, any period during which he has held judicial office after having so qualified shall be included, and the reference therein to a legal practitioner shall include a reference to persons in other jurisdictions who are legal practitioners or who have comparable functions.
• A person shall not be qualified to be appointed or to hold office as the Ombudsman or the Deputy Ombudsman if—
• subject to subsection (3) of section eight, he performs the functions of any other public office; or
• he holds any other paid office or employment; or
• he is a director, consultant or adviser of any corporate body or partnership.

(4) A person, before assuming the office of Ombudsman or Deputy Ombudsman, shall declare in writing to the President if he has any financial, commercial or other interests that might conflict with his duties and responsibilities in his office as Ombudsman or Deputy Ombudsman, as the case may be, and shall likewise declare any such interests if he acquires them after assuming his office.

                       4    Terms of office of Ombudsman and Deputy Ombudsman

• The Ombudsman shall vacate his office at the expiration of five years from the date of his appointment but shall be eligible for re-appointment for one or more further terms of office, each of which shall not exceed three years, as may be determined by the President.
• The Ombudsman or the Deputy Ombudsman shall retire when he attains the age of sixty-five years unless, before he attains that age, he has elected to retire on attaining the age of seventy years: Provided that—

(i) an election under this subsection shall be subject to the submission to, and acceptance by, the President, after consultation with the Judicial Service Commission, of a medical report as to the mental and physical fitness of the Ombudsman or the Deputy Ombudsman, as the case may be, so to continue in office; (ii) this subsection shall not apply to an acting Deputy Ombudsman.

• The Ombudsman and the Deputy Ombudsman may at any time resign their offices by notice in writing to the President.
• The Ombudsman or the Deputy Ombudsman may, notwithstanding that he has ceased to hold office, complete any investigation commenced by him while in office:

Provided that this subsection shall not apply if the Ombudsman or the Deputy Ombudsman, as the case may be, has ceased to hold office in terms of section 110 of the Constitution.