Public Protector says paying back ill-gotten money is vital for public accountability
Speaking under the topic “Transparency and Accountability in the Face of Challenges to the Rule of Law in South Africa: The Role of the Public Protector,” Adv Madonsela told delegates that it is important to get a common understanding of accountability, transparency and the rule of law.
Addressing the 5th International Conference of the Institute for Security Studies in Sandton yesterday, Public Protector, Adv Madonsela said it is important to understand that it is everybody’s business to ensure that the rule of law and supremacy of the Constitution are upheld. She said the key requirement under the rule of law is that nobody is above the law and the rule of law means it is the law that rules the people.
“Linked to this is that no one should escape accountability for their conduct no matter who they are. In other words, there should be no impunity for anyone regardless of positions or relationships. Impunity not only undermines consistency and healing for victims, it encourages cracks in the system, particularly the criminal justice system that many step to exploit. When that happens, the rule of law is undermined”, she said.
Public Protector explained the concept of transparency by quoting Justice Louis D. Brandes of the United State who said “Sunlight is said to be the best disinfectant”. She said this statement captures the essence of the importance of transparency in preventing and combatting wrongdoing in society, including state affairs and the criminal justice system.
The Public Protector told delegates that there are many forms of accountability, for example, we are all accountable for our action including the ethical and criminal implications of our decisions or action. She added that at that level accountability means a process that enables an actor to give account of or clarify their conduct and take responsibility thereof, including making amends or accepting sanctions where necessary.
She said in the context of public accountability, those in government are expected to be stewards in their exercise of public power and control of state resources. That power is given to them on the basis of trust and with the understanding that members of society can’t always be there. It the then assumed that those that have been given power will always do so within the confines of the law and the best interest of power givers. Accountability in the exercise of entrusted power incorporates answerability and taking responsibility bearing in mind that at the core of accountability is ensuring there is no impunity.
“The role of Chapter 9 institutions such as the Public Protector is to ensure accountability beyond the traditional criminal justice system remedies on matters of corruption and malfeasance. Key to the remedies is the opportunity to claw back some of the state funds that are siphoned away through corruption and malfeasance”, she said.
She cautioned that the difficulty in the criminal justice system it may take a while and by the time the process is concluded the assets may be hidden or depleted.
She urged that making amends should include giving back ill-gotten money. The Public Protector therefore steps in to ensure administrative accountability and make finding of maladministration. She further said that in view of the inquisitorial nature of the proceedings, there is an opportunity to get state actors to account directly for their conduct.
The Public Protector added that one beauty about an institution such as my hers was the range of remedies that allow it to ensure accountability beyond the traditional criminal justice system remedies on matters of corruption and malfeasance.
“In our work as Public Protector, we have found that there is a good link between openness and ending impunity. For example, when society knows that there has been wrong doing, it becomes its own guardian and enforcer of corrective action but if things happen behind closed doors, the people don’t get a chance to be their own enforcers. Our Constitution commits us to an open and transparent democracy and transparency is important to keep people engaged as they need to know what is happening within the institutions they have created,” she said.
In conclusion, Adv Madonsela said civil society should be part of the partnership against maladministration and corruption and be part of a united front that will ensure that the next 20 years of democracy are free from maladministration and state affairs are handled with accountability, integrity and responsiveness. She added that this will not only ensure that the objectives of the National Development Plan among others, are reached but also that the Constitutional dream of a freed potential of every person is achieved in a land of improved quality of life and where opportunities are equalized for all.
Spokesperson: Public Protector South Africa
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