Strengthen capacity to provide legislative and policy proposals and special reports, and track
implementation.
Evolve the capacity to identify and analyse systemic human rights issues and undertake national
inquiries.
6.5 Amicus curiae
Overview & Strengths
229.
It was generally observed that the role and effectiveness of the Office has changed beyond all recognition in
recent years and this is in part due to its expanded role, involvement and successes in relation to decisions of
the courts.
230.
The 2017 amendments to the Ombudsman’s mandate provided for the right to appeal court decisions,
including those of the Constitutional court. This expansion of functions occurred in the context of a good
judicial relationship with the Ombudsman’s office and both have combined to great effect in a number of
cases reported to the CA team.
231.
Two cases in particular were highlighted, both of which involved the review of decisions in murder cases as a
result of investigation by Office staff and subsequent petitioning of the courts. The outcome in both instances
were substantial sentences for the murderers, which otherwise would not have been handed down.
232.
Furthermore, in one of these cases the Office exercised its mandate to ensure the provision of legal assistance
to one of the parties who would otherwise have not been able to afford representation. This was just one
example of many the CA team heard of such support, which in some regions has been made possible through
the signing of MoUs, as set out in chapter 3.2 above.
Areas for improvement
233.
Currently, Article 14 of the Ombudsman’s legislation allows them to request documents related to a case,
but only after it has been decided. The current climate of criminal justice reform represents an opportunity
to expand the procedural status of the Ombudsman and to act as a friend of the court (amicus curiae), and
support for this was communicated to the CA team from within the office.
Recommendations
234.
The facilitation of legal assistance to those in need is commendable and should continue wherever possible.
The example given to the CA team by one Regional Representative of having signed an MoU to ensure legal
assistance where required is an excellent example of what can be achieved. In the process of implementing
the recommendations to strengthen the regional presences (chapters 3.1 and 3.2) consideration should be
given as to whether this approach can be replicated to achieve increased legal assistance coverage.
235.
The amicus role is one which is being embraced by NHRIs globally. Undertaken well it can influence the
outcome of individual cases to ensure human rights standards are upheld, and create jurisprudence and
legal precedence which enshrines human rights norms domestically. The Ombudsman’s office has several
strengths and opportunities which mean this is a good time to consider adopting this function. These are a
good relationship with the judiciary, a track record in court intervention (post-initial decision) and within a
context of reform.
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