No. 5 of 1994. The Ombudsman Act, 1994. 1 ANTIGUA
[ L.S. ]
I Assent,
J.B. Carlisle,
Governor-General.
1 lth August, 1994. .
ANTIGUA AND BARBUDA
No. 5 of 1994
AN ACT to provide for an Ombudsman to investigate adminis-
trative decisions and acts of officers of the Government and
Statutory bodies; and otherwise to give effect to section 66 of
the Constitution and for ober matters connected with or
incidental to the fcsegoing.
ENACTED by the Parliament of Antigua and Barbuda as
follows -
1. This Act may be citzd as the Ombudsman Act, 1994 and Short title.
comes into operation on such date as the Governor-General may
by proclamation appoint.
2. In this Act - Interpretation.
"House" means the House of Representatives;
"Ombudsman" means an officer of Parliament appointed
under section 66 of the Constitution;
ANTIGUA
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Appointment and
terms and
conditions of
service of
Ombudsman.
Disqualification.
Functions of
Ombudsman.
2 The Ombudsman Act, 1994. No. 5 of 1994.
"Statutory body" means any local government, commis-
sion, a body corporate established by an Act of Parliament
and acompany limited by liability of which the Government
is the majority shareholder or any other body as may be
prescribed by Parliament.
3. (1) The Ombudsman shall be appointed by resolutions of
each House of Parliament.
(2) The terms and conditions of his service shall be specified
in the resolution.
(3) The salary of the Ombudsman shall not be reduced while
he is in office.
4. A person shall not be qualified to be appointed as an
Ombudsman if he has served as amember of Parliament for two
consecutive terms or more immedately preceding the appoint-
ment.
5. (1) The functions of the Ombudsman is to investigate any
complaint relating to any decision or recommendation made or
any act done or omitted by any officer of the Government or
Statutory body in any case in which a member of the public claims
to be aggrieved, or appears to the Ombudsman to have sustained
injustice as aresult of the exercise of the administrative function
of that officer or body.
(2) The Ombudsman may make any such investigation on
a complaint made to him by any aggrieved person or by any
member of Parliament to whom a complaint is made by any
aggrieved person.
(3) The powers conferred upon the Ombudsman by this Act
may be exercisednotwithstanding any provision in any Act to the
effect that any such decision, recommendation, act or omission
is final, or that no appeal lies in respect thereof, or that no
proceeding or decision of the officer or body whose decision,
recommendation, act or omission it is shall be challenged,
reviewed, quashed or called in question.
(4) Nothing in this Act empowers the Ombudsman to inves-
tigate any complaint relating to a decision, recommendation, act
or omission of an officer or body -
No. 5 of 1994. The Ombudsman Act, 1994. 3
(a) in respect of which there is, under any Act, aright to
appeal or objection, or a right to apply for a hearing
or review, or a right to appeal on the merits of the
case, to any court or to any tribunal constituted by or
under any Act, until that right of appeal or objection
or application has been exercised in the particular
case, or until after time after the exercise of that right
has expired,
(b) in respect of which the person aggrieved has or had
a remedy by way of proceedings in any court estab-
lished under any Act;
(c) in respect of any person acting as legal adviser to the
Crown or acting as Counsel to the Crown in relation
to any proceedings;
(d) in respect of any other matter as is specified in the
Sehdulle.
(5) If any question arises whether the Ombudsman has juris-
diction to investigate any case or class of cases under this Act, he
may, if he thinks fit, apply to the High Court for a declaratory
order determining the question.
6. (1) All complaints to the Ombudsman and requests for
investigation by him shall be made in writing.
(2) Notwithstanding anything provided by or under any
written law, where any letter written by any person detained on
a charge or after conviction of any offence is addressed to the
Ombudsman, it shall be immr diabely forwarded, unopened to the
Ombudsman by the persoa for the time being in charge of the
place where the writer is cietained.
7. (1) Where the Ombudsman proposes to conduct an inves-
tigation he shall afford to the principal officer of the government
department or division or statutory body concerned an opportu-
nity to make, orally or in writing as the Ombudsman thinks fit,
representations which are relevant to the matter in question and
the Ombudsman shall not, as a result of such an investigation,
make any report or recommendation which may adversely affect
any person without his having had an opportunity to make the
representat ion',.
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Procedure in
respect of
investigation.
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(2) Every such investigation shall be conducted in private.
(3) It shall not be necessary for the Ombudsman to hold any
hearing and, subject as hereinbefore provided, no person is
entitled as of right to be heard by the Ombudsman. The
Ombudsman may obtain information from such person and in
such manner, and make such inquiries as he thinks fit.
(4) Where, during or after any investigation, the Ombudsman
is of the opinion that there is evidence of any breach of duty,
misconduct or violation of a criminal offence on the part of any
officer or employee of any government department or division or
statutory body, the Ombudsman ma) refer the matter to the
authority competent to take such disciplinary or other proceed-
ings against him as may be appropriate.
(5) Subject to this Act, the Ombudsman may regulate his
procedure in such manner as he considers appropriate in the
circumstances of the case.
(6) Where any person is required under this Act by the
Ombudsman to attend before him for the purposes of an investi-
gation, the Ombudsman shall cause to be paid to such person, out
of moneys provided by Parliament for the purpose, the fees,
allowances and expenses, subject to qualifications and excep-
tions corresponding to those that are for the time being prescribed
for attendance in the High Court, so, however that the functions
as are so prescribedandassigned to t h e R e g i s t r e Highcourt
shall, for the purposes of this subsection, be exercisable by the
Ombudsman and he may, if he thinks fit, disallow, in whole or in
part, the payment of any amount under this subsection.
(7) For the purpose of this Act a corrplaint may be made by a
person aggrieved himself or, if he is dead or for any reason unable
to act for himself, by any person duly authorised to represent him.
Evidence. 8. (1) The Ombudsman may from time to time requlre any
officer, employee or member of any government department or
division or statutory body who, in his opinion is able to give any
information relating to any matter that is being investigated by the
Ombudsman, to provide him with any such information, and to
produce any documents or things which in the Ombudsman's
opinion relate to any such matter and which may be ~n the
possession or under the control of that person.
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(2) The Ombudsman may summon before him and examine
on oath -
(a) any person who is an officer or employee or member
of any government department or division or statu-
tory body and who in the Ombudsman's opinion is
able to give any relevant information;
(b) any complainant; or
(c) any other person who in the Ombudsman's opinion
is able to give any relevant information,
and for that purpose may administer an oath. Every such exami-
nation by the Ombudsman shall be deemed to be a judicial
proceeding for the purposes of the Perjury Act. Cap. 59
(3) Subject to subsection (4) no person who is bound by the
provisions of any written law, other than the Secrets Act,
191 1 to 1939 of the United Kingdom in so far as it forms part of the
Laws of Antigua and Barbuda or any Act replaciig the same, to
maintain secrecy in relation to, or not disclose any matter, shall be
required to supply any information to or answer any questions put by
the Ombudsman in relation to that matter, or to produce to the
Ombudsman any document or paper or thing relating to it, where
compliance with that requirement would be in breach of the obliga-
tion of secrecy or nondisclosure.
(4) With the previous consent in writing of any complainant,
any person to whom subsection (3) applies may be requiredby the
Ombudsman to supply any information or answer any question
or produce any document or paper or thing relating only to the
complainant, and it shall be the duty of the person to comply with
that requirement.
(5) Except on the trial of any person for an offence under the
Perjury Act in respect of his sworn testimony, or for an offence Cap 59
under section 22, no statement made or answer given by that or
any person in the course of any inquiry by, or any proceedings
before, the Ombudsman under the Constitution or this Act shall
be admissible in evidence against any person in any court or at any
inquiry or in any other proceedings and no evidence in rcspect of
proceedings before the Ombudsman shdE be given against any
person.
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Disclosure of
certain matters not
to be required.
Ombudsman may
refuse to investi-
gate.
6 The Ombudsman Act, 1994. No. 5 of 1994.
(6) No person shall be liable to prosecution for an offence
against the Official Secrets Act 1911 to 1939 of the United
Kingdom, or any Act replacing the same, or any written law, other
than this Act by reason of his compliance with any requirement
of the Ombudsman under this section.
9. (1) Where the Attorney General certifies that the giving of
any information or the answering of any question or the produc-
tion of any document or paper or thing -
(a) might prejudice the security, defence or interna-
tional relations of Antigua and Barbuda (including
Antiguaand Barbudarelations with the Cavernment
of any other counby or with any international
orgmisations);
{b) will involve the disclosure of the deliberations of
Cabinet; or
{c) will involve the disclosure of proceedings of Cabi-
net, or any committee of Cabinet, relating to matters
of a secret or coddenrial nature, and would be
injurious to the public interest,
the Ombudsman shall not require the information or answer to be
given or, as the case may be, the document or paper or thing to
be produced.
(2) Subject to subsection (I), no rule of law which authorises
or requires the withholding of any document or paper, or the
refusal to answer any question, on the ground that the disclosure
of the document or paper or the answering of the question would
be injurious to the public interest shall apply to ,;ny investigation
by or proceedings before the Ombudsman.
10. (1) If, in the course of the investigation of any complaint
within his jurisdiction, it appears to the Ombudsman -
{a) that under the law or existing administrative practice
there is an adequate remedy for the complainant,
whether or not he has availed himself of it: or
(b) that, having regard to all the circumstances of the
case, any further investigation is unnecessary,
No. 5 of 1994. The Ombudsman Act, 1994. 7 ANTIGUA
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he may in his discretion refuse to investigate the matter further.
(2) Without limiting the generality of the powers conferred
on the Ombudsman by this Act, the Ombudsman may in his
discretion decide not to investigate, or, as the case may require,
not to further investigate, any complaint if it relates to any
decision, recommendation, act or omission of which the com-
plainant has had knowledge for more than twelve months before
the complaint is received by the Ombudsman, or, if in his
opinion,
(a) the subject-matter of the complaint is trivial;
(b) the complaint is frivolous or vexatious or is not made
in good faith; or
(c) the complainant has not a sufficient personal interest
in the subject-matter of the complaint.
(3) In any case where the Ombudsman decides not to investi-
gate or further investigate a complaint, he shall inform the
complainant in writing of that decision, and may if he thinks fit
state his reason therefor.
11. (1) This Act does not apply to any decision or recornmen- Application of A C ~ .
dation ma& or any act done or omitted by any officer or body
prior to the corning into force of this Act.
(2) Notwithstanding subsection (1) the Ombudsman may
request a department, or a division of the Government or any
Statutory body to re-examine any complaint which relates to a
decision, recommendation, act or omission to which this Act does
not apply but which in the opinion of the Ombudsman continues
to affect any person adversely in his personal capacity.
(3) Any department, division of government or statutory body
which is requested to re-examine any complaint mentioned in
subsection (2) may submit areport of its findings to the Ombuds-
man w i t h the rime specified in the request.
12. (1) This section applies in every case where, after Inaking Procedure after
an invest~gation under this Act, the Ombudsman is of the opinion investigation.
that the decision, recornatciation, actor wliss~on which was the
subject-matter of the investigation -
ANTIGUA 8 The Ombudsman Act, 1994. No. 5 of 1994.
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(a) appears to have been contrary to law;
(b) was unreasonable, unjust, oppressive, or improperly
discriminatory, or was in accordance with a rule of
law or a provision of any Act or a practice that is or
may be unreasonable, unjust, oppressive, or impro-
perly discriminatory;
(c) was based wholly or partly on a mistake of law
or fact; or
(d) was wrong.
(2) This section also applies in any case where the Ombudsman
is of opinion that in the making of the decision or recommenda-
tion, or in the doing or omission of the act, a discretionary power
has been exercised for an improper purpose or on irrelevant
considerations, or that, in the case of a decision made in the
exercise of any discretionary power, reasons should have been
given for the decision.
(3) If in any case to which this section applies the Ombudsman
is of opinion -
(a) that the matter should be referred to the appropriate
authority for further consideration;
(b) that the omission should be rectified,
(c) that the decision or recommendatioi: should be can-
celled F varied,
(d) that any practice on which the decision, recommen-
dation, act or omission was based should be altered;
(e) that any law on which thedecision,recommendation,
act or omission was based should be reconsidered,
(fl that reasons should have been given for the decision
or recommendation; or
(g) that any other steps should be taken,
No. 5 of 1994. The Ombudsman Act, 1994. 9 ANTIGUA
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the Ombudsman shall report his opinion, and his reasons therefor,
to the appropriate government department or division or statutory
body, and may make such recommendations as he thinks fit and
he may request the government department or division or statu-
tory M y to notify him, within a specified time, of the steps, if
any, that it proposes to take to give effect to his recommendations
and the Ombudsman shall also send a copy of his report and
recommendations to the Minister concerned.
(4) If within armonable t i e after thereport ismade no action
is taken which seems to the Ombudsman to be adequate and
appropriate, the Ombudsman, shall, after considering the com-
ments, if my, ma& by or on behalf of any government department
or division or statutory body affected, send a copy of the report
and reco~~mendations to the Prinze Minister, and if the Prime
Minister fajas to provide the Ombudsman with a satisfactory
explanation wihin a reasonable time, the Ombudsman shall
rnake a report to the Speaker who shall cause the report to be laid
ttefo~e the House of Represe~mrives.
(5) The I-Iouse shall examine the report and after hearing from
the Prime Minister and the Minister concerned resolve to accept
or reject the report.
(6) ?he Ombudsman &all attach to every report sent or made
under subse~tion (4), a copy of any comments made by or on behalf
of the government depamenr or division or the statutory body
conmed.
13. (1) Where, upon any investigation following a complaint, CornlpIainant to be
the Uranbudsman makes a recommendation under section 12 (3) inform* of resdt
and no action which seems to ihc Ombudsman to be adequate and '"Vestigai'on.
appropriate is taken thexecm vsi&in a reasonable time, the Om-
budsman shall inform the complainant of his recommendation,
and make such comments on d ~ e matter as he thinks fit.
(2) The Ombudsman shall in any case inform the complainant,
in such manner and at such time as he thinks proper, of the result
of the investigation.
14. No proceedings of the Ombudsman shall be held bad for Proceedings not to
want of form, and, except on the ground of lack of jurisdiction, be questioned Or
be subject to no proceeding or decision of the Ombudsman is liable to be review.
challenged, reviewed, quashed or called in question in any court.
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10 The Ombudsman Act, 1994. No. 5 of 1994.
Proceedings
privileged.
Power to visit
premises.
Delegation of
pwers.
15. (1) No proceedings lie against the Ombudsman or against
any person holding any office or appointment under the Ombuds-
man, for anything he may do or report or say in the course of the
exercise of his functions under this Act, unless it is shown that he
acted in bad faith.
(2) The Ombudsman, and any such person as aforesaid shall
not be called to give evidence in any court, or in any proceedings
of a judicial nature, in respect of anything coming to his knowl-
edge in the exercise of his functions under this Act.
(3) Anything said or any informaticxn supplied or any docu-
ment or thing produced by any person in the course of any inquiry
by or proceedings before the Ombudsman under this Act is
privileged in the same manner as if the inquiry or proceedings
were proceedings in a court.
16. (1) For the purposes of this Act, the Ombudsman may at
any time enter upon any premises occupied by any government
department or division or statutory body and inspect the premises
and conduct interviews or examine any document specifically
relevant to the complaint.
(2) Before entering any premises under subsection (I), the
Ombudsman shall notify the head of the government department
or division or statutory body occupying the premises of his
purpose.
(3) The Attorney General may by nolice to the Ombudsman
exclude the application of subsection (I), to any specified
exercise of the powers mentioned in subsection (I), if in his
opinion the application of subsection (1) might be prejudicial to
the public interest.
(4) Where a notice is given under subsection (3) and in the
opinion of the Ombudsman, it is necessary to take an action
apparently prevented by the notice, the Ombudsman may apply
to a judge of the High Court for an Order, setting aside the notice
in respect of such action and, where the judge is satisfied that such
action wouldnotbe prejudicial to the public interest, he may make
the order.
17, (1) The Ombudsman may, in writing, delegate to my
person holhng any office under him, any of his powers under this
No. 5 of 1994. The Ombudsman Act, 1994. 11 ANTIGUA
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Act except the power of delegation under this section and the
power to make report under this Act.
(2) Every delegation under this section is revocable at will and
no such delegation prevents the exercise by the Ombudsman of
any power so delegated.
(3) Every such delegation may be subject to such restrictions
and conditions as the On~budsman thinks fit.
(4) In the event that the Ombudsman, by whom any such
delegation is made, ceases to hold office, the delegation continues
in effect so long as the delegate continues in office or until the
delegation is revoked by a succeeding Ombudsman.
(5) Any person purporting to exercise any power of the
Ombudsman by virtue of a delegation under this section shall,
when required so to do, produce evidence of his authority to
exercise the power.
18. (1) Subject to the approval of the Governor-General, the st&
Ombudsman may employ such officers and other employees as
the Ombudsman considers necessary for the efficient operation of
his office, and may determine their salary and remuneration and
terms and conditions of employment.
(2) Any officer employed under subsection (I), shall be a
public officer subject to the laws relating to public servants.
19. The funds of the office of the Ombudsman shall be from Funds.
moneys appropriated for the purpose by Parliament.
20. (1) Before commencing the duties of his office, the Oathand Secrecy
Ombudsman shall take the oath administered by the Speaker of of infomation.
the House of Representatives in accordance with section 66 (3)
of the Constitution.
(2) Any person who performs the functions appertaining to
the office of the Ombudsman or of any office of employment
thereunder -
(a) shall regard as secret, classified and confidential all
documents, infomatian and things which have been
disclosed to any such ixrson inn the execkition of m y
i
ANTIGUA 12 The Ombudsman Act, 1994. No. 5 of 1994.
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ofthe provisions of ths Act, except that no disclosure
made by any such person in proceedings for an
offence under section 8 (2) , or which the Ombuds-
man considers requisite to make in the chscharge of
any of his functions and for the purpose of executing
any of the said provisions or the provisions of section
7 (4) or section 22, shall be deemed inconsistent with
any duty imposed by this paragraph;
(b) shall not be called upon to give evidence in respect
of, or produce any such documents, information or
things in any proceedings, other than proceedings
mentioned in the exception to paragraph (a).
Annual report. 21. (1) The Ombudsman shall report annually upon the affairs
of his office to the President of the Senate and the Speaker of the
House of Representatives, who shall respectively cause the report
to be laid before each House of Parliament if it is in session or,
if not, at the next ensuing session.
(2) The Ombudsman may, from time to time in the public
interest, publish reports relating generally to the exercise of his
functions or to a particular case or cases investigated by him,
whether or not the matters to be dealt with in such reports may
have been the subject of a report to Parliament.
Offences and 22. A person is liable on summary conviction to a fine of one
penalties. thousand dollars or to imprisonment of six months who -
(a) without h l fu l justrfication or excuse, wilfully ob-
structs, hmders or resists the Ombudsman or any
other person in the exercise of h s powers under this
Act;
(b) without lawful justification or excuse refuses or
wilfully fails to comply with any lawful requirement
of the Ombudsman or any other persol1 under this
Act;
(c) wilfully makes any fdse statement to or misleads or
attempts to mislead the Ombudsman or any other
person in the exercise of his powers under this Act;
or
No. 5 of 1994. The Ombudsman Act, 1994. 13 ANTIGUA
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(d) in a manner inconsistent with his duty under section
20 (2) (a), deals with any documents, information or
things mentioned in that paragraph.
23. The provisions of this Act are in addltion to the provisions of Rights under ~ c t
any other Act or rule of law under which any remedy orright of appeal do not affect other
or objection is provided for any person, or any procedure is provided etc.
for the inquiry into or investigation of any matter, and nothing in this
Act limits or affects any such remedy or right of appeal or objection
or plxxedure.
24. (1) The Ombudsman may make Regulations for the proper Regulations.
carrying intoeffect of this Act, including, in particular, for presuibing
anythmg required or authorised to be prescribed.
(2) The Ombudsman may make the contravention of any regula-
tion made under this section an offence punishable by a f i e of two
thousand dollars or by imprisonment for six months or both such fine
and imprisonment
(3) Any regulation made by the Ombudsman under this section
shall be laid before the House as soon as may be after the making
thereof and shall be subject to negative resolution.
SCHEDULE (Section 5 (4) )
Matters not subject to hvestigation
by the Ombudsman
1. The exercise of the powers conferredon the Governor-General by theConstitution.
2. Any action taken by the public officer responsible for the extradition of any person.
3. Any action taken with respect to orders or directions to Antigua and Barbuda
Defence Force or members thereof, or any proceedings under the Defence Act.
4. Any decision or action of the Public Service Commission relating to
appointment, removal and disciplinary control of dny person.
5. Any decision or action of the Public Service Board of Appeal.
6. Any decision or recommendation made or action taken by the Director of
Public Prosecutions.
ANTIGUA 14 The Ombudsman Act, 1994. No. 5 of 1994.
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7. Any decision or action of the Police Service Commission relating to the
appointment, removal and disciplinary control of any person.
8. Any decision by the Supervisor of Elections in the exercise of his functions
under the Constitution or any Act.
9. Any decision in respect of the functions of the Director of Audit under section
97 (2), (3), (4), (5) and (6) of the Constitution.
Passed the House of Representatives Passed the Senate this 12th day of
this 23rd day of June, 1994. July, 1994.
S.C. Benjamin,
Deputy Speaker.
M. Percival,
President.
S. Walker, S. Walker,
Acting Clerk to the House ofRepresen- Acting Clerk to the Senate.
tatives.
Printed at the Government Printing Office, Antigua and Barbuda,
by Rupert Charity, Government Printer,
-By Authority, 1994.
800-8.94 I Price $5.75 1
