The Public Protector South Africa’s view on its constitutional mandate resonates with the purpose behind the creation of the institution as proposed during constitutional talks on the eve of democracy, says Public Protector Adv. Thuli Madonsela.
Speaking at the 2nd Unisa Annual Spring Law Conference in Magaliesberg on Thursday, Public Protector Madonsela supported her point by quoting from one of the 34 constitutional principles accepted during the multi-party negotiations which the Constitution had to comply.
The principle concerned provided for independence and impartiality of a “Public Service Commission, a Reserve Bank, an Auditor-General and a Public Protector which shall be safeguarded by the Constitution in the interests of the maintenance of effective public finance and administration and a high standard of professional ethics in the public service”.
She quoted from the “Ready to Govern” document in which the governing party proposed the creation of a “full-time independent office of the Ombud” (Public Protector) with “wide powers to investigate complaints against members of the public service and other holders of public office and to investigate allegations of corruption, abuse of their powers, rudeness and maladministration”. The document also proposed that the Ombud be empowered to provide “adequate remedies.”
Public Protector Madonsela also quoted from the party’s “Building a United Nation” document, wherein it called for the Constitution to empower the poor and the vulnerable to enforce their rights by creating a Human Rights Commission and a Public Protector to perform the function.
She told the conference that until recently the understanding of her office’s constitutional mandate by senior government leaders was the same as that of the office.
Public Protector Madonsela referred to a speech by former President Nelson Mandela wherein he explained the rationale behind the containment of the several complaints mechanisms, including the Public Protector, in the Constitution, emphasising that this was preceded by an understanding of the important of accountability in democracy and the experience of the “possible dangers of a government that is neither transparent nor accountable.”
She also referred to President Mandela’s statement that even the most caring of governments had people who were fallible, necessitating the administrative conduct of government and authorities to be subject to the scrutiny of independent organs such as the Public Protector, the Auditor General and the Constitutional Court, among others.
Public Protector Madonsela further referred to a speech by President Jacob Zuma when he addressed the launch of the African Ombudsman Research Centre in March 2011, in which the President affirmed the Public Protector’s role of ensuring that citizens were “protected from violations of their rights, the abuse of power, negligence, unfair discrimination and maladministration.”
Most importantly, President Zuma emphasised in that speech the importance of taking “prompt remedial action” as articulated in the Public Protector South Africa service pledge, indicating that he would “encourage” government departments to “emulate” the pledge.
Public Protector Madonsela said even though the mandate of her office remained the same today as it was when she assumed duty as Public Protector in 2009, the views of some people towards the mandate had shifted.
She stressed that the role of her office remained that of being a vehicle for members of the public to curb excesses in the exercise of public power and control over state resources while providing the complainants with real remedies.
Turning to the role of lawyers in promoting constitutionalism, the rule of law and constitutional democracy, Public Protector Madonsela implored them to offer independent views and help others to understand the concepts.
She said the starting point towards understanding constitutional democracy should be to understand the difference between parliamentary supremacy and constitutional supremacy.
Public Protector Madonsela explained that, in parliamentary supremacy, once parliament had spoken nobody could say anything whereas in constitutional supremacy the final word remained in the constitution as interpreted by the courts.
She asked lawyers if, in discharging their duties, they were “feeding or restraining the crocodile”, explaining that feeding the crocodile meant colluding with or supporting impunity while restraining it referred to being part of the integrity movement that sought to push back excesses in the exercise of public power and control over state resources.
Asked whether South African had anything to teach Africa given that the country itself was, according to the enquirer, “corrupt”, Public Protector Madonsela said South Africa was not a corrupt country but a country with a problem of corruption. She referred to the fact that the country was occupying the fifth spot on the Mo Ibrahim Index.
She further said that strong constitution and governance systems limited opportunities for corruption. To illustrate this point, Public Protector Madonsela referred to a formula by Professor Robert Klitgaard, that corruption thrived when there was decision monopoly plus discretion minus accountability (C=M+D-A).
“Corruption is not a public sector problem, it is a societal problem,” she said. “If there was no corruption in society there would not be corruption in the public sector.”
She added that South Africa was exemplary in that it had multiple accountability mechanisms which ensured that when one failed another could step in to intervene.
For more information, contact:
Oupa Segalwe
Tel: 012 366 7035
Cell: 072 264 3273
E-mail: oupas@pprotect.org
