Address by the Public Protector,
Adv Thuli Madonsela, at the opening of the Tshwaraganang
Legal Advocacy Centre exhibition, in Johannesburg, Gauteng
on Thursday, 05 August 2010.
05 August 2010
Programme Director;
Ms Towera Sichinga, Tshwaraganang Legal Advocacy Centre
Ms Madeline Seidenstriker, Acting Political Counselor of the US Embassy
Mr William Naglich, Program Management Specialist, Bureau of International Narcotics and Law Enforcement Affairs, US Embassy
Ms Ineke Stoneham, Human Rights Officer, US Embassy
Cllr Dhlomo IFP Chief Whip
Jozet Muller, EU
Nadine Redman, EU
Ayanda Mvibi Irish Aid
Cait Moran, Irish Aid
Judith Mtsewu, City of Johannesburg
Ladies and gentlemen;
It is an honour to share this special occasion
with you and a privilege to say a few words.
The timing of this important exhibition couldn’t
be better. We have just commenced Women’s Month
and in four days will be celebrating our National
Women’s Day.
On this month and occasions such as today we are
reminded of the sacrifices women before us made
to create spaces we enjoy today. Sadly, we are
also reminded that although we have won a lot of
battles, the struggle for women’s rights and gender
equality is far from over.
One of the indicators of the fact that the struggle
continues, is the issue that brings us together today,
the issue of gender violence generally and the heinous
crime of rape specifically. It is sad to note that 15
years into our hard won democracy and the promises in
our Bill of Rights, women still cannot leave their
homes without the fear of rape.
Worst of all even their homes are not the sanctuaries
they are meant to be. Every day, we hear horrendous
stories of some little girl, older person, person with
disability or woman in general, having been raped in
their homes where they should be safe. More often than
not such rape is perpetrated by a relative or someone
close the girl or woman.
When such things happen to the people, the state has two
key roles being to care for the victim/survivor and affected
family and to prosecute the perpetrator. In addition to this,
the state’s duty includes the protection, which, according to
emerging court jurisprudence, incorporates the prevention of
preventable harm. Unfortunately, the state often fails women
on all of these. This is the point that the exhibition entitled
“Brick Wall: Rape and the Criminal Justice System”, seeks to drive
home.
Before going further I want to applaud Tshwaranang Legal Advocacy
Centre for conceiving a simple yet effective way to communicate the
difficult and painful subject of the plight of rape victims or survivors
as they navigate the criminal justice system in search of justice. Those
of you that have already gone through the exhibition will recall that at
one state we had to trample on the faces of women, representing victims.
Unfortunately, this is often the plight of those who seek justice after
an experience of rape. We then proceed to a maze of red-tape which again
sympolises the obstacles that victims or survivors of rape are subjected
to in the criminal justice system. I’m told that at this point some turned
back as this appeared to be too much trouble. Again unfortunately, this is
what victims or survivors of rape often do. When they contemplate the trouble
they are likely to go through, they abandon the process and unfortunately,
struggle to find closure.
There are plenty of service failures in the justice system that are depicted
in the exhibition, which includes videos. It would be great if all leaders
in government, particularly the criminal justice system could take time to
come and see the exhibition and gain valuable insights from this simple yet
powerful depiction of the service failures in the criminal justice system’s
handling of rape cases. I’ll revert later to the role I play as the Public
Protector when the state fails to meet its service obligations to its people.
Exactly two years ago, in July 2008, a study titled “Tracking Justice: The Attrition
of Rape Cases Through the Criminal Justice System in Gauteng” revealed deplorable
details of how rape victims often suffer gross prejudice at the hands of the state.
Conducted by among others, Tshwaraganang Legal Advocacy Centre, which organized
tonight’s event, the study focused on about 70 police stations across the province
of Gauteng, sampling more than 2 000 rape cases.
Some of the key findings were that:
- Half of the cases the study focused on resulted in arrests but only
42.8 percent of the perpetrators were charged ;
- Police closed 45 percent of the cases in the sample;
- More than half of the cases closed by police were disposed of
because the perpetrators could not be identified or located;
- Descriptions of the perpetrators were absent from more than
three quarters of the victims’ statements; and
- In more than half the dockets, instructions had to be
issued twice or more before the investigating officer complied
with it and in 30.2 percent of the cases where an instruction
was issued on two or more occasions to arrest the suspect,
the suspect had disappeared.
Furthermore, according to SAPA, the number of general criminal
dockets lost at police stations across the country should be a
source of great concern to all of us. In 2008/09, the police
reportedly lost 668 dockets, marking an alarming 56 percent rise
from a figure recorded a few years earlier
(www.news24.com. )
Service failures in the criminal justice system that culminate
in injustice to rape victims are not restricted to police conduct.
These include public hospitals and clinics, where medical examinations
crucial to in the prosecution of perpetrators are often bungled by
officials in such service points.
Ladies and gentlemen,
I would imagine, for a rape victim, there is nothing as frustrating
as learning that the person who inflicted so much pain on you will
roam free or get a slap on the wrist just because of incompetence
or service failure on the part of a responsible state organ or state
organs.
Service failure in the criminal justice system, often means, as may
be seen from the study that brought us here today, that victims undergo
secondary victimization. Often, this includes re-living those horrendous
moments by reporting their cases again to redress institutions such as the
Independent Complaints Directorate (ICD) and the Public Protector. Had the
police and other service providers in the criminal justice value chain done
their job accordingly, this would not have been necessary. However, it should
not put victims off seeing to it that justice prevails.
In most cases, you find that the victims are living in poverty and do not
have the resources to take the matter to court. In such instances, institutions
such as the Public Protector are there to help victims hold the state accountable,
get justice, rebuild their lives and move on.
Established by the Constitution, the Public Protector is an independent institution
created by Chapter 9 of the Constitution to support and strengthen constitutional
democracy. It is an impartial institution that exercises its powers and performs its
functions without fear, favour or prejudice. The Public Protector is accountable only
to the law and the constitution and only reports on its activities to the National
Assembly. No person or organ of state may interfere with the functioning of this
institution. In fact organs of state are compelled by section 181 of the Constitution
to support the Public Protector and other constitutional institutions.
The work of the Public Protector is principally regulated by section 182 of
the Constitution and 5 key pieces of legislation. These are the Public Protector
Act of 1994(PPA), the Executive Members Ethics Act of 1998, the Protection and
Promotion of Access to Information Act of 2000(PAIA), the Protected Disclosures
Act of 2000(PDA) and the Prevention and Combating of Corrupt Activities Act of
2004 (PCCA). The most relevant legislation for the purposes of our topic this
evening is the PPA which covers the conduct of all public authorities except
court decisions.
Victims can approach the Public Protector anytime when they have complaints
regarding improper or prejudicial conduct of an organ of state or public
official or public office bearer. Even if it is not a complaint but information
or an allegation of impropriety, they may still approach the Public Protector.
Progamme Director;
The only matters excluded from my powers as the Public Protector are matters
involving the conduct of private persons/entities and judicial matters. Other
matters, such as police and prosecutorial conduct are discretional matters
for me. In other words I can choose to investigate or defer to an internal
institution such as the ICD, where police conduct is involved. But even when
I ask an agency such as the ICD to investigate, I retain a watching brief.
In deciding whether or not to exercise my discretional right to refer,
I take into account whether or not the institution I wish to refer the
investigation to has the power to take remedial action as I do under
section 192 of the Constitution and corresponding sections of the PPA.
In the Public Protector has focused a lot on the investigative powers.
While continuing to use investigations, we are harnessing the full
powers of the Public Protector. We are now exhausting all the powers
given to us by law to resolve your complaints in a manner that ensures
justice.
We have committed ourselves to a vision that states that we seek: “to be
a trusted, effective and accessible Public Protector that rights administrative
wrongs and consistently acts with integrity to ensure fair, accountable and
responsive decision-making, service and good governance in all state affairs
and public administration in all spheres of government”.
Flowing from this vision, are two specific promises, we have made to the public:
- To be accessible to and trusted by all persons and communities;
- To deliver prompt remedial action
- To promote good governance.
The Public Protector has offices spread across the country,
where victims can report alleged or suspected improper or
prejudicial conduct by the state for investigation. Details
can be obtained on our website: www.publicprotector.org or
our toll free line 0800 11 20 40.
As we prepare to commemorate National Women’s Day this coming
Monday, remembering the bravery shown by 20 000 women, who at
the height of apartheid, marched to the Union Buildings against
pass laws in 1956, I take this opportunity to commit my office
to doing its part to hold the state accountable for discharging
its responsibilities with regard to promoting women’s rights and
ending gender based violence.
You will agree with me that the state ought to take a lead in the
process of giving back to women the human dignity taken away by
gender based violence and ensuring that they enjoy the rights given
to them by the Constitution and the international human rights
instruments such as CEDAW, which we have freely signed as a country.
My office commits itself to working with all stakeholders within the state
and civil society to ensure that the state serves all women and victims
or survivors of violence with accountability, integrity and responsiveness.
Thank you.
Adv Thuli Madonsela.
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