Botswana Law Society honours Public Protector

Public Protector Adv. Thuli Madonsela was, on Friday 02 September 2016, awarded Honorary Membership of the Law Society of Botswana. An inscription on the award states that Adv. Madonsela is being recognized for “…her unwavering and courageous defence of strong independent public institutions."

Speaking at an event held at the Phakalane Golf Estate in Gaborone, Chairperson of the Council of the Law Society Mr. Lawrence Lecha described the Public Protector as a symbol and champion of independent public institutions, adding that these were the values the Law Society of Botswana stood.

Accepting the accolade, Adv. Madonsela said she was honoured by the recognition as it signified affirmation of the role her team plays in strengthening democracy while ensuring justice for Gogo Dlamini, or ordinary complainants, through the promotion of good governance in state affairs.

Adv. Madonsela delivered a keynote address to delegates, mainly drawn from the country’s legal community, organs of state involved in the rule of law and the diplomatic corps.

She said strong independent state institutions have become an important imperative for strong democracies in the modern world as the traditional political mechanism for monitoring and curbing excesses in the exercise of state power and control over public resources have proven inadequate for the complexities of the modern state.

Reminding participants that strong democracies are important for sustainable peace and stability, Adv. Madonsela pointed out that strong institutions such as an independent judiciary, independent administrative oversight institutions such as the Public Protector, an independent legal profession and active civil society, including an independent and vigilant media, were important for strong and resilient democracies, which are critical in today's turbulent world.

Adv. Madonsela drew the delegates’ attention to article 15 of the African Charter on Democracy, Elections and Good Governance as a statement of commitment by African leaders to establish, maintain and support independent state institutions.

She touched on four requirements for independent institutions that are stipulated in the African Charter, key among these being autonomy and adequate resourcing. She further alluded to the fact that United Nations Sustainable Development Goal 16 recognizes institutions building and supporting good governance as important factors in ensuring social justice and sustainable peace.

The Public Protector also addressed delegates on factors underpinning strong independent state institutions. Using her office as an example, Adv. Madonsela identified three categories of factors that are essential for a strong an independent institution as being constitutional guarantees, internal and external factors.

On constitutional guarantees, Adv. Madonsela placed emphasis on the fact that her office is provided for in the Constitution and accordingly exercises original constitutional power and not delegated power and has independence and autonomy similar to the judiciary.

She also alluded to the pitching of the office at a senior rank which is the same level as judges, currently Supreme Court of Appeal or Constitutional Court judges. Adv. Madonsela opined that the senior rank was meant to attract experienced and accomplished professionals competent to be judges, who will combine their experience and the rank of the office to give gravitas to the authority of the office.

The Public Protector also identified clearly defined powers, including the power to take appropriate remedial action, as part of the success factors behind the strength and independence of her office.

On the security of the tenure, Adv. Madonsela highlighted it as critical not just for the Public Protector but also for the judiciary and all independent oversight bodies, advising that the tenure should either be a fixed, non-renewable term or a life appointment.

She, however, advised that a life appointment was not advisable for institutions with an anticorruption mandate. In this regard she advised that the Public Protector's tenure, which is a seven year, non-renewable term, was ideal.

The Public Protector said the security of tenure and the impeachment guarantees of the Public Protector had been important factors behind her ability to maintain independence and impartiality and courageously make decisions without fear or favour.

Adv. Madonsela commended the drafters of the Constitution for the foresight behind the constitutional guarantees, including the non-renewable term, which discourages the possibility of the incumbents making favourable decisions towards the end of a term to earn favour for term renewal.

Regarding internal factors, she highlighted effective leadership, systems, competent and committed people, values and service excellence as essential for a strong and independent institution.

On the issues of leadership, Adv. Madonsela she said it was important that the incumbent is respected by those she has to supervise based on their track record and not solely because of the position.

Adv. Madonsela told the gathering that her office would not have achieved its mandate had it not been to the country’s culture of respecting the rule of law, a strong and functional integrity system that included the Auditor-General, Courts, support from civil society and the media among others.

She singled out excellent jurisprudence that has clarified the role, responsibility and powers of the Public Protector. In this regard, Adv. Madonsela mentioned the cases titled Public Protector v Mail and Guardian; the DA v SABC; and the EFF v Speaker of the National Assembly.

The Public Protector said the Mail and Guardian judgment clarified the innovative fact finding powers of the institution that transcends those of courts while the SABC and EFF cases clarified the binding innovative remedial powers of the institution.

Appealing to those entrusted with public power to allow themselves to be reviewed and scrutinized by independent institutions such as hers, Adv. Madonsela said that having independent institutions whisper or speak truth to power, was in the interest of achieving resilient democracies with sustained public trust, inclusive prosperity and peaceful co-existence. She opined that a complaining public is a safe public as long as there are avenues for meaningful dialogue.

She opined that independent institutions provide innovative avenues for meaningful dialogue between the people and those entrusted with public power and resources. Adv. Madonsela said such institutions complement the traditional accountability mechanisms and were important as they closed gaps that existed in the traditional mechanisms.

In a message directed to those in the oversight sector, Adv. Madonsela said they had to embrace and be comfortable with the fact they sat between government and the people to ensure that people were protected. She encouraged those entrusted with public power, including politicians to transcend fear. Adv. Madonsela said this included embracing the unknown and appointing truly independent persons in the entire value chain.

The Public Protector was in Botswana at the invitation of the Law Society in that country. During her stay in Gaborone, she also met with the newly-appointed Ombudsman of Botswana, Mr. Augustine Makgonatsotlhe, on a benchmarking exercise and to explore areas for future collaborations, including participation in the African Ombudsman and Mediators Association’s (AOMA) activities and utilizing services of the South African based and DIRCO-funded African Ombudsman Research Centre (AORC).

She congratulated Botswana on celebrating 50 years of democracy without a coup and for having consistently maintained a good position in the Mo Ibrahim Governance Index, saying Botswana's success story was Africa's success story.

For more information, contact:

Mr. Oupa Segalwe
Senior Manager: Communications
Public Protector South Africa
Cell: 072 264 3273

Public Protector South Africa

Published Date: 
Sunday, September 4, 2016