As reported with anticipation in the Curacao Chronicle and other local media on 8 June 2017, the Caribbean Ombudsman Association (CAROA) held its ninth biennial conference on the island of Bonaire in the Dutch Antilles the following week between 11-15 June 2017. The theme of the conference was ‘The Ombudsman – A Key Actor in the Quest for Good Governance: Challenges facing Modern-Day Ombudsmen’. The conference hosts were Dutch National Ombudsman, Mr Reinier van Zutphen, and then CAROA President Dr Nilda Arduin, Ombudsman of Sint Maarten (since succeeded by Ms Victoria Perman, Ombudsman of Bermuda, graduate of LSE, well-known trial lawyer and trained arbitrator and mediator). As anticipated by the Curacao Chronicle, the conference concerned itself with shared issues and challenges, and with human rights and equal opportunities. The conference was followed by two days of training delivered by Queen Margaret University, Edinburgh and sponsored by the International Ombudsman Institute.
CAROA was founded in 1998 and ratified its constitution in 2002. The first ombud in the region, that of Guyana, dates back, however, to 1966. CAROA owes its existence to the inspiration of Dr Victor Ayeni, when Director of Governance and Institutional Development at the Commonwealth Secretariat, which has also sponsored CAROA since its inception. CAROA currently has 17 ombud-office members.
Despite the geographical, political and socio-economic distance that separates the Caribbean from the UK, historical ties and shared occupational focus invite reflection that goes beyond that of mere ‘Compare and Contrast’.
The location of the CAROA conference ‘on the island’ of Bonaire reflected the competing themes that dominated discussion. On the one hand, Bonaire, with a population of just 20,000, is self-consciously styled as part of the Caribbean territory of the Kingdom of the Netherlands, but on the other hand sits just 50 km from the coast of Venezuela and is to that extent shaped by Latin American sensibilities. So, whilst it was suggested by Arlene Brock, former Ombudsman of Bermuda and now Director of the Ombudsman Research Centre in Durban, South Africa, that the Caribbean is in the main concerned with matters of maladministration, a number of the contributors, for example from Jamaica and Aruba, also spoke vividly of the human rights and social justice issues that affect those islands.
Not surprisingly, distinctively colonial themes loomed large ‘on the island’. There was discussion about the reluctance of island governors to allow ombuds to travel to the conference or to provide travel expenses; about the more general difficulty of transport between the islands, which meant, for example, that delegates from Trinidad had to fly all the way to Panama to connect with a flight to Bonaire; about governors’ delays in appointing to vacant posts; about their resistance or inertia in the face of requests from ombuds for files and other evidence; and about the remoteness of the Dutch Ombudsman in The Hague from the concerns of citizens in Bonaire, for whom he has responsibility.
The most impassioned presentation came from Jairo Boekhoudt, founder of Igualdad, Aruba, who spoke of his personal experience of discrimination as a gay man and about the issue of sexual orientation in the Caribbean more generally. He made the strong claim that the lack of an ombud in Aruba was partly responsible for the failure there to recognise gay marriage. His vision of the ombud was as ‘defender of the poor and of the Constitution’, and the existence of his NGO he attributed also to the lack of an effective ombud. Victoria Pearman, Ombudsman for Bermuda, suggested that hostility to gay rights is strong in Bermuda too and that these ‘hateful feelings’ are expressed sometimes even by public figures in the region.
Arlene Harrison, Public Defender in Jamaica, painted a strong portrait of the ombud as a force for stability and social cohesion on an island that she characterised as at times deeply troubled, not least at election time when political violence is endemic. Her contribution, partly on behalf of the absent Donna Parchman-Brown, the Political Ombudsman for Jamaica, reflected to that extent the vision of the ombud offered from an Argentinian perspective by Mariano Yakimavicius, on behalf of the Latin American Ombudsman Institute. Yakimavicius spoke of the ‘defensoria’ (a gender-neutral term for the office which, he said, was now used in the region to replace the gendered title ‘defensor’ for the office-holder) as a significant contributor to constitutionalism in Latin America (apart from in Brazil and Chile, both of which still lack a national defensoria) and as an important protagonist in the struggle against gender violence, and in respect of social issues such as housing, disability, social care, and equality on grounds of gender and race.
Less dramatically, perhaps, he also noted that a significant issue in Latin America is the reluctance of states to fill vacant defensoria posts or to allow civil society much, if any, say in appointments. The explicitly ethical and political dimension of the defensoria function in Latin America was evoked by an emotive quote from Octavio Paz: ‘A silent witness observes humankind: it is the human conscience.’
Striking a rather different note, the chair of CAROA, Nilda Arduin, Ombudsman of Sint Maarten, proposed that democracy could be viewed as a ‘business’, with ‘the people’ cast in the role of shareholders and Parliament as a board of directors. On this model, the ombud serves as a kind of protector of shareholders. The proposition that ideally an ombud should be a lawyer, in part to save on the need to pay for external legal advice and improve the profile and status of the office, did not meet with universal support, nor did the suggestion from the floor that it would always be possible instead to take legal advice from government lawyers (which most thought pretty much the last place an ombud should seek advice about anything).
The customary gulf between lawyers and ombud was in fact expressly alluded to by Jacob Wit, President of the Constitutional Court, Sint Maarten, who said that as a judge he had never given a thought to the ombud and that in this regard his ignorance was shared by other public lawyers throughout the region. He went on to offer a spirited, if conventional, image of the ombud as cheap, quick and flexible supplement to the courts, a kind of Court of Equity (as he put it) in which the measure of justice would be not the Lord Chancellor’s foot but the Ombud’s. He mentioned a recent criminal case in Trinidad which had taken 27 years to get to trial, and suggested that even the slowest ombud would not be as slow as that.
Elton Georges, former Deputy Governor and Complaints Commissioner for the British Virgin Islands, emphasised the need in fact for ombuds to engage with lawyers more energetically and also to engage them as members of staff. He described independence as the ‘mighty plinth’ on which the ombud institution is built, whilst recognising that the personality of the office-holder and the process of appointment are both important factors. He mentioned that in his island the ombud had been appointed for just one year, ‘in case things did not work out’, and that in Guyana the post had been left vacant for 8 years in the 2000s.
The very impressive Dutch ombud, Reinier van Zutphen, was entirely candid about the awkwardness of his role, based in The Hague, 8,000 miles away from Bonaire. He described an island host to lots of rich Dutch exiles, but with a very poor indigenous population, a high percentage of single parents, and a low rate of school attendance in part attributable to the lack of public transport or communications networks ‘on the island’. He emphasised, however, the applicability of the European Convention on Human Rights throughout ‘the Kingdom’ (of the Netherlands) and the need to develop ‘ombudsman jurisprudence’, in the sense of a database of case law derived from ombuds decisions.
Perhaps the defining observation was, however, that of Elton Georges, who said that the issues facing ombuds in the Caribbean are those universal issues facing all ombuds, except they are ‘magnified in the micro-societies’ of small-island states. And to reinforce the point, but from the other side of the equation, a couple of cheerful but somewhat resigned public officials reminded everyone that in a micro-society everyone knows who they are and so it is not unusual for them to be harassed in the street, for their cars to be scratched or for them to be abused, personally, on radio shows. They seemed to accept that this was just the way things are bound to be in a society where you can wait up to 30 years to receive a plot of land earmarked for you by the government or where a claim to a passport (and thereby relative freedom) might also take years to process.
About the author:
Dr Nick O’Brien is Honorary Research Fellow, University of Liverpool, and co-author (with Mary Seneviratne) of Ombudsmen at the Crossroads.