Introduction and Objective
The Ombudsman is defined in the Tenure Facility Bylaws as one of the governance functions of the Board and contributes to providing the confidence that any issue relating to conflict of interests, mismanagement or violation of rights, policies, safeguards, and risk to the Tenure Facility is dealt with on an active basis. The Ombudsman also provides a means to address conflicts of interest or any legitimate governance concerns from the local to the international levels if such concerns or conflicts were not satisfactorily addressed through the Tenure Facility’s Grievance and Redress Procedure. The Ombudsman’s explicit resolution mechanism designed to address conflicts of interest and concerns raised by stakeholders, especially governments, business, or civil society, about the Tenure Facility operations. The objective is to provide further legitimacy and protection to the Tenure Facility and its stakeholders.
This is a mandatory steering document that applies to the Board and the person appointed as Ombudsman. Only the Board can approve deviations from the correct application of this document. Deviations from these provisions that have not been approved are to be reported through either the Tenure Facility Grievance and Redress Procedure or the Tenure Facility Whistleblower channel and will be subject to appropriate and immediate action.
An official appointed by the Board to investigate and address conflict of interest, individuals’ complaints of mismanagement or violation of rights against the organization.
Terms of reference requirements
Qualifications of the Ombudsman
The Ombudsman is an experienced, highly respected lawyer duly qualified to the practice of law in the country relevant to the Tenure Facility, with at least 10 years of legal practice. The Ombudsman is appointed by the Board of the Tenure Facility for a term of five (5) years, renewable once.
Recourse to the Ombudsman
Recourse by any person to the Ombudsman shall be governed by the following:
1. Recourse to the Ombudsman may be resorted to by any person who suspects non-compliance with the Tenure Facility’s policies, for example, on conflicts of interest (for both staff and Board), anti-bribery and anti-corruption, anti-money laundering and anti-terrorism financing, environmental and social safeguards, gender equality, Indigenous Peoples and local communities, whistleblowing, and financial management, subsequent to prior recourse by such person to the Grievance and Redress Procedure or the Whistleblower Channel and such prior recourse did not satisfactorily address the concern or grievance of such person.
2. Recourse to the Ombudsman may not be resorted to with respect to personal or employment contract-related conflicts which are subject to the human resource management policies and procedures of the Tenure Facility, and subject to Swedish labour law.
Direct recourse to the Ombudsman without prior recourse to the Grievance and Redress Procedure or the Whistleblower Channel may be resorted to by any person falling under subparagraph 1 above in cases where internal procedures are unduly delayed, there are substantial reasonable grounds to believe that internal procedures will not give rise to a satisfactory outcome due to institutional bias, or the available remedies would not be able to redress the complaint or grievance.
Access to the Ombudsman shall be subject to the procedures in Annex 1.
Duties and Functions of the Ombudsman
The Ombudsman shall have the following duties and functions:
1. The Ombudsman shall exercise sole discretion over whether or how to act on matters that are brought to her/his attention.
2. Contact with and provision of information to the Ombudsman shall not create a lawyer-client relationship between the Ombudsman and the informant. The Ombudsman may not act as the lawyer for the informant.
3. Initiation of contact by any person with the Ombudsman shall in all cases automatically trigger the Ombudsman’s professional legal obligation to maintain secrecy and confidentiality of information. In this regard:
a. The Ombudsman shall maintain strict confidentiality concerning matters that are brought to her/his attention and take every reasonable step to safeguard confidentiality and privileged information.
b. The Ombudsman shall not reveal the identity of any individual with whom there is contact in the course of case-related work, nor shall s/he reveal information provided in confidence that could lead to the identification of the individual, without the individual’s express written permission.
c. The Ombudsman is prohibited from disclosing the information, and the informant is entitled to request that the information provided be kept confidential. The Ombudsman must in general refuse to disclose the information even when requested to do so by a court, a public authority, law enforcement authorities (such as police and public prosecutors) or any other third party. It also applies to the correspondence and advice of the Ombudsman to the informant; this information is also protected by professional secrecy.
d. The only exception to strict confidentiality is when, as determined by the Ombudsman and upon prior consultation with the informant, there appears to be an imminent risk of serious harm to persons or property and when there is no other reasonable option for confidentially handling the matter.
4. Following initial contact with the informant, the Ombudsman may decide to seek to obtain more information with respect to matters concerning, for example, suspected non-compliance with the Tenure Facility’s policies on conflicts of interest (for both staff and Board), anti-bribery and anti-corruption, anti-money laundering and anti-terrorism financing, environmental and social safeguards, gender equality, Indigenous Peoples and local communities, whistleblowing, and financial management, from such relevant sources as s/he may determine.
5. The Ombudsman shall have access to individuals in the Tenure Facility (including staff and Board) and its partner organizations that may be able to provide advice, information, or expert opinions on a particular matter. Requests for information by the Ombudsman shall be answered promptly and efficiently. Subject to the application of Swedish privacy laws and regulations, if the matter concerns Tenure Facility staff or Board members, the Ombudsman may access all records concerning such staff or Board members that are in the possession of the Tenure Facility, except the following: medical records, unless the staff member concerned expressly consents to their release; records of investigations, unless otherwise permitted by the relevant parties or authority; or records and communications covered by professional legal privilege, unless otherwise permitted by the relevant parties or authority. Information or documentation connected obtained or generated by the Ombudsman through the exercise of her/his mandate under this paragraph are strictly confidential and will not be sought, obtained, or used for any other purpose.
6. If the Ombudsman decides after due consideration of the information obtained that further internal investigation or resolution by Tenure Facility or resort to law enforcement is needed in order to appropriately address the issue, the Ombudsman may, if the informant agrees explicitly in writing and only to the extent permitted, provide the Tenure Facility or appropriate law enforcement
authorities with such information but without identifying the informant. Should the Ombudsman refer the matter and provide the information to the Tenure Facility or law enforcement authorities for appropriate resolution, the Ombudsman shall be kept informed of the process and remains the contact person, in confidence, for the information with respect to the proceedings undertaken.
7. The Ombudsman may not charge any fee or remuneration for any contact made or information provided by any person to her/him.
8. The Ombudsman can be paid a retainer fee under terms and conditions as may be mutually agreed with the Board.
9. The Ombudsman, as a designated neutral party, shall remain impartial and have no personal interest or stake in the outcome of an issue. The Ombudsman shall consider the legitimate concerns and interests of all individuals affected by the matter under consideration. The Ombudsman shall advocate fairness and equitably administered processes and shall not advocate on behalf of any party.
10. The Ombudsman cannot make or set aside managerial decisions, mandate policies or be a party to any formal administrative procedure conducted by the Tenure Facility. However, the Ombudsman may be consulted by the Tenure Facility on policy issues where his or her views and experience may prove useful.
11. The Ombudsman shall not have decision-making powers with respect to the Tenure Facility, but shall advise and make suggestions or recommendations, as appropriate, on actions needed to settle cases brought to the Ombudsman’s attention.
12. The Ombudsman shall not determine rights, and any procedures or processes conducted by the Ombudsman do not constitute formal adjudicative or investigatory procedures within the institutional framework of the Tenure Facility.
13. The Ombudsman may, at the request of the Board of the Tenure Facility, identify, analyse, and report on broad systemic issues and make recommendations with respect to the areas of her/his mandate to improve the policies, procedures, systems, and structures of the Tenure Facility, without breaching confidentiality or anonymity.
The Tenure Facility waives any rights to be informed about any contact by any person with the Ombudsman or to obtain any information provided by informants directly to the Ombudsman and shall neither seek to obtain information about the identity of the informants nor to take any retaliatory action against them.
This Board approved policy supports the existing policies and procedures of the Tenure Facility, particularly those related to the management of environmental and social risks and impacts. The Tenure Facility applies this policy in all its ongoing activities, programmes, and projects. The Executive Director can, after consulting the COO or the Board when relevant, approve exceptions from the correct application of this policy. Exceptions that have not been approved are to be reported through the Tenure Facility Grievance and Redress Procedure and will be subject to appropriate and immediate action. The Executive Director is responsible for maintaining and implementing this policy, the Board monitors the implementation of this policy at its annual meetings, through the review of periodic implementation reports from the Executive Director. This policy is reviewed and confirmed by the Executive Director each year, and at least every 5 years by the Board. This policy shall take effect immediately upon appointment by the Board of an Ombudsman, who shall also be provided with a copy of this policy. The Board reviews, no later than six months before the end of the term of an appointed Ombudsman, the implementation of this policy and the performance of the Ombudsman under this policy and takes any appropriate action as may be necessary to enhance its effectiveness.
Annex 1: Recourse to the Ombudsman
How to go to the Ombudsman
The Ombudsman may be contacted, in any recognizable language translatable to English or Swedish, through any of the following prioritized channels:
What information to provide the Ombudsman
Persons seeking recourse to the Ombudsman should provide the Ombudsman with their name and contact details, so that the Ombudsman can respond to the initial contact and arrange for further meetings and discussions as may be appropriate.