The Minister has no authority to appoint another Ombudsman

Feb 28, 2021 Features / Columnists, Peeping Tom

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Kaieteur News – Mr. Kamal Ramkarran may have acted prudently in not proceeding with the holding of the elections of the Guyana Cricket Board. His decision has allowed some breathing room for the interested parties to consider the legality of Ramkarran’s own appointment as Ombudsman, and the implications of the vitiation, by the Court, of the GCB elections of 2020.
Mr. Ramkarran is a brilliant young lawyer. He has a bright and promising legal career ahead of him. He should not despoil that promise by becoming involved in actions which can call into question the legality of his appointment as Ombudsman.
The Cricket Administration Act, for all intents and purposes, has been reactivated. The lifting of the stay of certain provisions of that Act effectively means – though there will be persons disputing this – that the Act is once again enforced.
The Cricket Administration Act is clear that the Minister appoints the first Ombudsman, not every Ombudsman. This is consistent with the underlying philosophy of the Act which assigns merely a ‘triggering’ role for the government, after which the body corporate – the country Boards and the GCB – assume control of their own affairs and the management of local cricket.
Section 17 of the Cricket Administration Act provides for the Minister with responsibility for Sport to appoint the first Cricket Ombudsman after meaningful consultation with the West Indies Cricket Board. This provision is contentious because the WICB should not be conscripted into involving itself in the elections of its associate Boards. This provision is a misplaced and misguided legal insertion by the architects of the Cricket Administration Act. It can result in the annulment of the Act.
A cricket Ombudsman was previously appointed. In January 2015, it was announced that Dr. Winston Mc Gowan had been appointed as the first Ombudsman by then Minister of Sport, Frank Anthony. It is said that he subsequently resigned but, even if he did not, his term would have expired.
The law is very clear that the Minister of Sport only appoints the first Ombudsman. The Minister of Sport has no role to play in the election and appointment of any other Ombudsman.
I therefore put it to Mr. Kamal Ramkarran that his appointment as Ombudsman is ultra vires of the law. He should therefore not accept what is clearly an unlawful appointment.
Section 10 of the Act implies that the Ombudsman has to be elected by 2/3 of the members of the GCB. If in the event that there are two or more candidates contesting for Ombudsman, and neither obtains this special majority, then there has to be a run-off. The Minister of Sport cannot therefore take it upon himself to impose an Ombudsman, other than the first Ombudsman.
The Act is also clear as to the role of the Ombudsman. The Act states that the Ombudsman “shall be responsible for the verification of the Register of clubs and for performing the functions of Returning Officer for the first election of the Guyana Cricket Board.”
Section 10, however, speaks to the Ombudsman having the task of performing the role of Returning Officer for the elections of membership of the GCB but this qualified by the previous sub-section which speaks to the said Ombudsman being elected at an extraordinary meeting of the GCB.
The Minister with responsibility for Sport therefore has no authority to appoint any other Ombudsman after the first Ombudsman had been appointed. His predecessor, Frank Anthony, had satisfied the relevant provisions of the Act when he appointed Dr. McGowan in 2015.
The role of the Ombudsman is decisive in the election of County Boards. The Minister of Sport had raced ahead and set the date for the elections for the Demerara Cricket Board. But those elections are now open to legal challenge. The Cricket Administration Act gives the Ombudsman the responsibility “for the verification of the Register of Clubs and for performing the functions of Returning Officer for the elections of the membership of the Guyana Cricket Board.”
The said provision, Section 10(3) is disjunctive. It provides for two primary tasks for the Ombudsman. The first of these is the verification of the Register of Clubs. The second is to act as Returning Officer of the GCB. The two are disjunctive because clubs do not participate in elections of the GCB; County Boards do.
The Ombudsman is required to verify the Register of Clubs and since the only practical purpose of this verification is for County Board and sub-association elections, those elections should not proceed unless this verification has taken place.
It is therefore anticipated that there will be a successful legal challenge to the elections of the Demerara Cricket Board since there was no Ombudsman elected to verify the Register of Clubs. And once this happens, it will overturn any forced elections of the GCB.
Kamal Ramkarran should extricate himself from this legal quagmire. He has no locus standi since his appointment is ultra vires of the law and, further, the elections of the GCB cannot proceed unless there has been a properly constituted elections of the Demerara Cricket Board subsequent to the necessary verification of the Register of Clubs by a duly-elected Ombudsman.
This mess in which K. R. now finds himself is not of his making. But it can be his undoing.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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