Address by Public Protector Adv
Thuli Madonsela at the Seminar on the Freedom of the Public
Protector from Political Parties/Influence hosted by the
University of South Africa on Thursday, 21 April 2011 at the
university’s Dr Mirriam Makeba Concert Hall
Programme Director
Assistant Principal in the Office of the Vice-Chancellor,
Prof Dawid van Wyk
Deputy Public Protector, Adv Mamiki Shai
Director of Schools
Adv Vusi Pikoli
Staff and students of UNISA
Members of the Media
Ladies and Gentlemen
I am humbled by both the honour and priviledge of
addressing this important seminar which basically focuses on
the independence of the Public Protector. The honour is also
deeply appreciated in the light of my background and
interest in academia. The academic community is also
important for arranging discourse that defines the space to
be accorded to the Public Protector as an Ombudsman
institution in our democracy. An ongoing dialogue on the
independence of my office and other institutions supporting
democracy, from political and other influences, is critical
for the sustainability, growth and maturity of our hard-won
constitutional democracy. Such dialogue is also timely in
view of the fact that issues of good governance and respect
for the rule of law have come under sharp focus across the
African continent.
Programme Director, before I zoom into the focus of today’s
dialogue which is the Freedom of the Public Protector from
Political Influence, allow me touch on the nature and
constitutional mandate of my office.
What is the Public Protector and what purpose does the
Public Protector serve in a constitutional democracy?
The Public Protector is a home brewed version of the global
institution of the Ombudsman (some prefer to say
Ombudsperson) that was formally entrenched as a buffer
between the citizens and government in Sweden about 201
years ago. I am emphasizing the formal aspect because there
is evidence of various traditional versions of the
institution that existed long before Swedish intiative.
Closer to home, we have identified, amongst others, the
Venda Makhadzi as an example of an Ombudsman-like
buffer between the community and its traditional leader. The
idea is to have a high level independent public officer to
reconcile citizens with the state by giving citizens a voice
while giving the state a conscience through exacting
accountability from the state when citizens complain.
The Public Protector is an independent constitutional
officer appointed under Chapter 9 at the same level as a
judge of the Supreme Court of Appeal by the President on the
recommendation of Parliament. The parliamentary process is a
transparent one which commences with open public
nominations.
The place of the Public Protector in our democracy is
defined by sections 181 and 182 of the Constitution, which
outline the mandate and powers of this office.
Section 181 of the Constitution, which has the same wording
as Section 165(4) spelling out the independence of the
courts, requires the Public Protector to be independent
and subject only to the Constitution and the law and he/she
must be impartial and must exercise his/her powers and
perform his/her functions without fear, favour or prejudice.
Section 181(3) of the Constitution goes further to compel
other organs of state to assist and protect the Public
Protector and other institutions supporting democracy,
through legislative and other measures, to ensure the
independence, impartiality, dignity and effectiveness of
the institutions.
The constitution further prohibits any person or organ of
state from interfering with the functioning of the Public
Protector and other institutions supporting democracy
(section 181(4)).
The Public Protector is only accountable to the National
Assembly and reports on her/his activities and performance
of her functions at least once a year (section 181(5)).
While the Public Protector is one of several institutions
supporting democracy, this office has its own distinct
mandate which is spelt out in section 182 of the
Constitution.
What exactly does the Constitution require from the Public
Protector? Section 182 of the Constitution specifically
places a responsibility on the Public Protector to:
“(a) investigate any conduct in state affairs, or the
public administration in any sphere of government, that is
alleged or suspected to be improper or to result in any
impropriety or prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.”
The Constitution further stipulates that the Public
Protector has additional powers and functions
prescribed by national legislation. I’ve underlined
additional powers to highlight the fact that the powers and
functions conferred by legislation are additional to the
Constitutional mandate and therefore cannot be interpreted
in a manner that seeks to diminish the constitutional
mandate.
There are about 16 statutes that further define and confer
additional powers to the Public Protector as envisaged in
the Constitution. When I assumed office, one of the first
few things I did was to collate these into a booklet and
publish it for ease of reference. Copies of this book titled
“Constitutional and Legislative Mandate of the Public
Protector” are available on request.
Key among these statutes, are the following:
- Public Protector Act 23 of 1994 (PPA)
- Executive Members’ Ethics Act of 1998 (EMEA) and the
Executive Ethics Code
- Prevention and Combating of Corrupt Activities Act
12 of 2004
- Protected Disclosures Act 26 of 2000
- Promotion of Access to Information Act 2 of 2000;
and
- Housing Protection Measures Act 95 of 1998
The PPA gives the Public Protector to investigate on
request by any person, or on his or her initiative
maladministration in connection with government affairs at
any level, abuse or unjustifiable exercise of power or
capricious, discourteous, delay or other improper conduct;
improper or dishonest act or omission or offences referred
to in the Prevention and Combating of Corrupt Activities
Act, with respect to public money; improper or unlawful
enrichment, or receipt of any improper advantage in the
public administration or state affairs or any act or
omission by a person in the employ of government at any
level or person performing a public function.
Here I must pose to state that my team and I have come to
the conclusion that those that have been saying all along
that there is no legal impediment to investigating the
actions of persons not in the employ of government when such
persons are involved in state affairs are correct. We have
decided that my findings will now include improper actions
of persons outside government who conduct themselves
improperly when engaged in state affairs.
The PPA also gives the Public Protector the authority to
resolve and redress complaints against organs of state
through conciliation, mediation, negotiation and any other
appropriate action. In fact, most of the 15 000 or so
complaints that my office handles annually, are resolved
through one or more of these informal means. Only a little
over 40 result in formal reports with findings and remedial
action as envisaged in section 182 of the Constitution.
The EMEA designates the Public Protector as the sole agency
for investigating and advising on all breaches of the
Executive Ethics Code by Members of the National and
Provincial Executives including the President and Premiers.
It is important to note that only members of national and
provincial legislatures, the President and Premiers may
lodge a complaint under the EMEA. (Section 4)
The Public Protector is also recognized as one of the
enforcement agencies by the Prevention and Combating of
Corrupt Activities Act. This is one of the least known
mandates of this office. A related and equally relatively
unknown mandate is the responsibility conferred by the PDA
to receive and process protected disclosures by whistle
blowers. The PDA protects whistle-blowers from reprisals
when they disclose information on alleged corruption, fraud
and related abuses of state power or resources.
The Public Protector is also one of the institutions that
adjudicate on disputes regarding information requests under
the Promotion of Access to Information Act (PAIA).
Another obscure yet important mandate of the Public
Protector is the power to review decisions of the
Homebuilders Registration Council as envisaged in section
22(4) of the Housing Protection Measures Act 95 of 1998.
The Constitution specifically compels the Public Protector
to be accessible to all persons and communities. I must say
that this is something we aspire towards but a budget of
about R140 million and a staff complement of about 270 are
cold comfort against the challenge of meeting this
constitutional injection in respect of a national population
of about 48 million. Even if we exclude babies and very
young children, we are still dealing with at least 30
million people.
Programme Director,
The independence of the Public Protector is firmly
entrenched in the Constitution and legislative framework.
This brings me to the focus of today’s dialogue.
Perhaps the starting point for initiating a conversation on
“Freedom of the Public Protector from political influence”
is to consider the value of the independence of the Public
Protector.
It is globally recognized that the efficacy of the Ombudsman
institution depends a lot on integrity and trust. Indeed the
same applies to the courts. People trust the Public
Protector if they view its findings as biased and
inconsistent and invariably unfair or unjust. Clearly
political or any other influence outside influence will
result in decisions that have no basis in fact, law,
policies, regulations, prescripts and principles of
administrative justice. Needless to say that such findings
cannot be fair or just. Political influence will also
invariably negate the important justice component of
consistency.
I must hasten to state though that it’s not real political
influence or interference that is a problem. Any conduct
that leads to a perception of such influence or interference
undermines public confidence in the institution. This is
well captured in local and international jurisprudence. Two
cases that immediately come to mind are the Canadian case of
Valente v the Queen and to local case of van
Rooyen. These cases, which deal with the independence of
the judiciary also provide valuable insights on what factors
are critical for independence.
You probably are wondering why we rely on jurisprudence on
judicial independence when the Public Protector is not a
court. I’ve concluded that the similarities in wording
between sections 165 of the Constitution dealing with the
independence of the judicial system and section 181 dealing
with the independence of institutions supporting democracy
cannot be attributed to a writer’s block. The drafters of
our Constitution consciously wanted the same arm’s length
between institutions supporting democracy and organs of
state as they wanted for the courts.
The one difference is accountability to Parliament for
activities and performance of functions by institutions
supporting democracy as they do not constitute a fourth arm
of government. However, the wording clearly does not give
Parliament the power to micromanage the affairs of the
Public Protector or any other constitutional institution.
Parliament’s role is to ensure that these institutions serve
their constitutional purposes and use resources allocated to
them cost effectively and in line with approved expenditure
framework.
Programme Director
We can accordingly agree that the freedom or independence of
the Public Protector from political and other external
influences is a non-negotiable constitutional guarantee.
Let us the quickly examine some of the factors that are
globally recognized as collective guarantors of the
independence of the institution of the Ombudsman. The same
factors obviously go a long way with regard to insulating
the Public Protector from political parties/influence.
Constitutionally entrenched position and tenure
In South Africa, the position of Public Protector is
constitutionally entrenched. The Constitution guarantees a
7-year non-renewable tenure. It is globally understood that
the tenure should be either life or fixed. This seeks to
limit the pressure of making decisions that may seek to
secure favours relating to reappointment.
Open and Inclusive process of appointment
The process of appointment is open and transparent and the
appointment criteria is objective and transparent. Any
person or entity may nominate any person with the requisite
qualification and competence. The involvement of civil
society is a constitutional guarantee. (Section 183(6)). A
multi-party Parliamentary Committee conducts interviews and
recommends to Parliament. The Constitution requires a 60%
vote in favour of the candidate to be referred to the
President for appointment.
This requirement goes a long way in engendering the
credibility and reputation of the institution as it
minimizes if not eliminate perception of political bias
and/or pliability.
In my case I was humbled by the support from all parties
represented in Parliament and the vote in my favour, which
is 100%.
Objective Criteria and Transparent Process of Removal from
Office
Grounds for removal are specified in the Constitution. The
process is also transparent and includes the requirement of
a 2/3rds majority vote vote by Parliament. The two thirds
majority only applies to the Public Protector and the
Auditor General.
Parliamentary Accountability as opposed to Executive
Accountability
When the Public Protector accounts to a Member of the
Executive, there is a real risk of her/his independence
being compromised. Fortunately, in our country the Public
Protector accounts to Parliament unlike in some of the other
African countries.
Institutional independence including resources
It is crucial that the ombudsman institution is provided
space to operate freely and without undue influence. In our
democracy the constitutional and legal guarantees are there.
For example, the Public Protector is not constitutionally
and statutorily linked to any Department. However, in our
country there is a lacuna. In most countries the Ombudsman’s
office functions as a ministry with a fully-fledged
department headed by the equivalent of a Director General.
In some countries e.g. Sweden and Angola, the Ombudsman is
even senior to ministers.
A key anchor of institutional independence is adequate
resources. This is one area where our country is lacking.
The position is compounded by having to receive the budget
via one of the organs of state that the office has oversight
over. Who can forget the one occasion when the then Minister
of Justice publicly refereed to the first Public Protector
of South Africa, as a twit for daring to find against him.
Other globally recognized guarantors of independence include
the following
- Adequate Power: The Public Protector has to wield
adequate and appropriate powers that enable her/him to
be effective
- Transparency and openness: The Public Protector
needs to communicate the grounds for non-decision-making
and ensure that decisions are forwarded to affected
parties and are also made public. We have gone a step
further to make our processes transparent throughout the
investigation. However, we are mindful of managing the
risk posed to confidentiality and trust.
- Working democracy based on respect for the rule of
law: There is a need for a democratic governance culture
in society for the Public Protector to be effective.
This include for the rule of law and tied to this point
is-
- Independent and effectiveness courts that make
justifiable rulings or judgements based on the law.
- Solidarity within a strong and functioning integrity
sector. In South Africa this includes oversight agencies
such as the Auditor-General, the Public Service
Commission, Inspector General of Intelligence and the
Special Investigating Unit.
- Political will: Political is important for the
implementation of the findings of the Public Protector
and decisions of the judiciary.
- Media freedom: The importance of the role of the
media in entrenching the independence of the Public
Protector cannot be overemphasized. Hence the need for a
free and independent media that not only looks after the
welfare of the Public Protector but also holds her/him
accountable is critical. The media is also an important
ingredient in the moral suasion that is the hallmark of
an effective Ombudsman.
- Accessibility of services: It is critical that the
services of the Public Protector are accessible to all
communities and not only those who are well-to-do.
- Accountability role of civil society: Organs of
civil society need to ensure that their voices are heard
regarding good governance in state affairs.
If all these things are working well and in sync with
legislative prescripts, the Public Protector will indeed be
insulated from political influence or interference. As
things stand today, I have no reason to doubt that the
Public Protector is shielded from undue influences.
However, South Africans and even the Public Protector should
not be complacent but everyone should continue to be
vigilant.
The government will also help a great deal if it continues
to implement the findings of the Public Protector that
include taking prompt remedial action as directed.
Constitutional entrenchment of ethical governance through
the Preamble, Bill of Rights and section 195 of the
Constitution or Chapter 10 as we ordinarily refer to this.
When all of us do what we are supposed to do to support and
strengthen the ombudsman institution, my office’s
credibility and reputation will grow exponentially and the
Public Protector’s efforts to nudge organs of state into
being accountable and responsive will be enhanced.
The inclination to act with impunity will end and our
democracy will be strengthened whilst the legitimacy of
state institutions is reinforced. Without doubt, this
contributes to the maturity of our constitutional democracy,
stability and development.
Ladies and Gentleman, I hope that the thoughts I have shared
with you will provoke robust debate that will enrich the
public discourse on the role of the Public Protector.
Our vision is to become a key contributor to an accountable
state and access to justice in grievances against the state.
The foresight of the seminar organizers in linking the work
of my office and ethics is accordingly appropriate and
commendable. The end result is an accountable and ethical
government that is responsive, respects the rule of law
leading to peace and stability.
The benefit to the state is reconciliation with its
citizens. That is why our Strategic Plan uses the symbol of
the Makhadzi as the one who reconciles citizens with state
by exacting accountability from the state.
Thank you.
Adv TN Madonsela
Public Protector of South Africa
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