Programme director
Advocate Themba Mthethwa, Chief Executive Officer of the Office of the Public Protector
Advocate Thuli Madonsela, Public Protector of the Republic of South Africa
Advocate Mamiki Shai, Deputy Public Protector of the Republic of South Africa
Honourable members of parliament
Provincial legislatures and local government councils
Distinguished leaders and representatives of political parties
Heads and representatives of institutions supporting constitutional democracy
Leaders and representatives of civil society and the business community
Management and staff in the Office of the Public Protector
Distinguished participants
Ladies and gentlemen
Programme director
I would like to convey the greetings and best wishes of Minister Jeff Radebe, Minister of Justice and Constitutional Development. I would like to thank the Public Protector for affording us the opportunity to address this stakeholder consultative forum, but even more so for the opportunity to benefit from the collective wisdom of this gathering.
This forum brings together representatives of all three arms of the state, the legislature, executive and judiciary, representatives of all three spheres of government, national, provincial and local; representatives of state institutions supporting constitutional democracy, representatives of political parties, civil society, business and government departments.
I believe that all of us attending this stakeholder consultative forum are committed to and actively engaged in the critical task of creating a legitimate state which derives its authority from the people. Through regular elections and continuing popular participation in the processes of governance, to a nation acting in partnership mobilised around a clear vision of the kind of society we wish to become, each sector contributing to the realisation of the common good; to putting in place the means for citizens to exercise their human rights as well as the checks and balances necessary in a law governed society.
I believe that we are committed to ensuring that our democratic developmental state should also have the organisational and technical capacity to realise its objectives. The meeting of this forum takes place during Human Rights month, shortly after we celebrated Human Rights Day on 21 March and so doing, also commemorated the 50th anniversary of the Sharpeville massacre on that day in 1960. In a month’s time, on 27 April, we will be celebrating Freedom Day, celebrating the sweet 16 years of our democracy.
Programme director, someone once said that, “We make our decisions. And then our decisions turn around and make us.” (Attributed to PW Bornum)
One of the decisions that we made as a nation at the dawn of our democracy, during the multi-party negotiating process in 1993, was to accept a package of 34 constitutional principles with which the transitional Constitution and all subsequent Constitutions would have to comply.
Constitutional principle XXIX provides for the 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.
In the same year the African National Congress had proposed, in a document titled, Building a United Nation: ANC Policy Proposals for the Final Constitution, that, “The Constitution shall as far as possible empower the poor and the vulnerable to enforce their rights and shall inter alia create a Human Rights Commission and a Public Protector to perform this function”.
Prior to that, in 1992 already, the ANC had said in its document, ready to govern, that: “The ANC proposes that a full-time independent office of the Ombud should be created, 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 Ombud shall have power to provide adequate remedies. He shall be appointed by and answerable to parliament”.
Former President Nelson Mandela explained the thinking behind the creation of the Public Protector to the Africa regional workshop of the International Ombudsman Institution in 1996, as follows: “We were mindful from the very start of the importance of accountability to democracy. Our experience had made us acutely aware of the possible dangers of a government that is neither transparent nor accountable. To this end our Constitution contains several mechanisms to ensure that government will not be part of the problem; but part of the solution.
“Public awareness and participation in maintaining efficiency in government within the context of human rights are vital to making a reality of democracy. Many South Africans can still recall a time when the face of the public service was hostile and a complaint could lead to victimisation or harassment when access to justice seemed an unrealistic dream. In the new South Africa the face of the Public Service is changing radically.
“However, we are not yet out of the woods, much still need to be done in terms of transformation. In this sense, therefore, our Public Protector’s office is not only a critical instrument for good governance. It also occupies a central place in the transformation of the public service by, among other means, rooting out the arrogance, secrecy and corruption so rampant during the apartheid years”.
The importance of the Public Protector was also appreciated by the judicial arm of our democratic state when, in declining to certify the draft text of the interim Constitution, the constitutional court, in its first certification judgement, remarked that:
“The independence and impartiality of the Public Protector will be vital to ensuring effective, accountable and responsible government. The office inherently entails investigation of sensitive and potentially embarrassing affairs of government. It is our view that the provisions governing removal of the Public Protector from office do not meet the standard demanded by constitutional principle XXIX”.
These provisions were, of course, subsequently amended and accepted by the Constitutional Court in its final certification judgment. The mandate of the Public Protector is set out in chapter nine of the Constitution as being to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action.
The Public Protector is given wide ranging powers both in the Constitution as well as in national legislation to execute this mandate.
Whether these powers are adequate and whether they are properly understood by all concerned, including the Office of the Public Protector, is a matter that we look forward to hearing the views of this stakeholder consultative forum.
Importantly, however, our Constitution emphasises not only the Public Protector’s independence but also its accessibility. Significantly, the Constitution enjoins the Public Protector to be accessible to all persons and communities. It is important to view the work of the Public Protector in the context of the relationship between our goal creating a better life for all by working together to speed up effective service delivery to the people and the need to ensure greater access to justice for all in our society.
The United Nations Development Programme makes the point in a Practice Note on Access to Justice released in 2004 that: “Justice is closely related to poverty eradication and human development. There are strong links between establishing democratic governance, reducing poverty and securing access to justice.
“Democratic governance is undermined where access to justice for all citizens (irrespective of gender, race, religion, age, class or creed) is absent. Access to justice is also closely linked to poverty reduction since being poor and marginalised means being deprived of choices, opportunities, access to basic resources and a voice in decision making.
“Lack of access to justice limits the effectiveness of poverty reduction and democratic governance programmes by limiting participation, transparency and accountability”.
It is very encouraging that that the incumbent Public Protector has expressed such a strong commitment to ensuring the accessibility of the Office of the Public Protector. Soon after her appointment she emphasised that: “Accessibility to all our people, including rural communities is a key challenge and a priority if I am to make a difference. I’ve noted the efforts of my predecessors to make the Office of the Public Protector accessible to communities in order to live up to the constitutional imperative of being accessible to all persons in the country.
“But I believe there is still a lot to be done and that the media can play a critical role in helping us reach everyone. It’s not just a matter of knowing that the Public Protector exists but it’s also knowing what matters can be brought to this institution and what recourse or outcomes can be expected”.
Again, we look forward to benefitting from the wisdom of this stakeholder consultative forum as to how this excellent work can be taken even further.
In his State of the Nation Address last year, and this year again, President Jacob Zuma highlighted five national priorities. These are the creation of decent work and sustainable livelihoods, education, health, rural development and food security as well as the fight against crime and corruption.
These priorities are mutually dependent and reinforcing. Achieving these priorities requires of us to work together. It requires continuing popular participation in the processes of governance. It requires of the nation to act in partnership, mobilised around a clear vision of the kind of society we wish to become, each sector contributing to the realisation of the common good.
It requires citizens to have the means to exercise their human rights, and for the checks and balances necessary in a law governed society to exist. It requires that the democratic developmental state should have the organisational and technical capacity to realise its objectives.
The state institutions supporting constitutional democracy have an invaluable role to play in this regard.
President Zuma, speaking in his capacity as President of the ANC, delivering the statement of the national executive committee of the ANC on the occasions of the 98th anniversary of the ANC emphasised the fact that: “Corruption poses a serious threat to our struggle to build a caring society and it erodes the moral fabric of our society. It is a threat that must be fought both inside and outside the state”.
He addressed this theme in his capacity as President of the republic in his State of the Nation Address in 2009 when he said: “We have repeatedly stated our commitment to fight corruption in the public service. We will pay particular attention to combating corruption and fraud in procurement and tender processes, application for drivers’ licences, social grants, identity documents (IDs), and theft of police case dockets”.
The importance of fighting corruption is highlighted in a Practice Note on Mainstreaming Anti-Corruption in Development released in December 2008 by the United Nations Development Programme, where it is argued that: “Regardless of the country context, evidence from across the globe confirms that corruption hurts the poor disproportionately and hinders economic development, reduces social services and diverts investment in infrastructure, institutions and social services. Moreover, it fosters an anti-democratic environment characterised by uncertainty, unpredictability and declining moral values and disrespect for constitutional institutions and authority. Corruption, therefore, reflects a democracy, human rights and governance deficit that negatively impacts on poverty and human security”.
In our context this means that it will be so much more difficult to achieve the goal of improved healthcare if there are corrupt staff and administrators in our hospitals and clinics who steal medicine and grant tenders to charlatans who fail to deliver or who bleed the scare resources of the state by overcharging for basic items through tenders that were awarded through corrupt means.
We will struggle to achieve the improved education that our nation needs if there are teachers and administrators who corrupt the process of purchasing stationery and text books and literally take bread out of the mouths of schools children by eating money intended for school feeding programmes.
We have established a number of mechanisms to fight corruption, maladministration and the inefficient use of public resources such as the Special Investigating unit, anti-corruption hotlines, whistle blowing legislation, specialised units in the South African Police Service (SAPS) such as the Hawks.
We must empower all citizens to make use of these mechanisms in addition to the Office of the Public Protector and other state institutions supporting constitutional democracy.
Elaborating on the commitment to fighting corruption made by President Zuma above, Minister of Finance, Pravin Gordhan, stated in his 2010 Budget Speech that: “A major site of both wastage and inefficiency is in our procurement system. Through a combination of corrupt practices, inefficient procurement, poor planning and, in some instances, collusion by the private sector, we are not getting the kind of value from our purchases that our people deserve. Even where there is absolutely no corruption, we sometimes give contracts to people who cannot implement them and so houses are left without roofs, roads crumble when it rains; water scheme break down and school books fail to get delivered.
Mister Speaker, corruption is an ever present threat to our ambitions. All South Africans must constantly and consciously work to root out this cancer. If we are to address this scourge, we need improved management capability, governance, enforcement, and oversight in government and in the business sector. Poorly managed tender processes are all too often open to such abuse. Greater transparency and accountability in procurement systems will therefore be a key focus of reform in the period ahead.
“Additional funds have been allocated to bolster efforts to strengthen supply chain management and the relevant government departments have intensified efforts to bring perpetrators of tender fraud to book. Data matching, the practice of comparing, for example, taxpayer data with social grants registers or housing waiting lists will become a regular feature of a systematic approach to minimise abuse.
“We are starting to see the early results of these efforts, officials have been disciplined and others fired, five people linked to supply chain fraud were arrested in KwaZulu-Natal last week and more cases have been handed over to the National Prosecuting Authority. We are expecting more arrests very soon. An Inter-Ministerial Committee on Corruption has been established, Chaired by Minister Chabane, to coordinate government’s efforts to stamp out corruption”.
Answering a question in the National Assembly recently on 24 March 2010, President Zuma said: “One of the key priorities of this government is to fight crime and corruption. Since the fourth democratic administration took office in May last year, there have been numerous examples of action taken in pursuance of this priority. It is essential that all cases are dealt with swiftly, thoroughly and impartially”.
Programme director, there is much more to come.
We need to prepare everyone in our society, but especially those who control the means of public communication, for what is bound to emerge from the successful fight against crime and corruption. We need to make everyone understand that we should not be disheartened by the successes of the decisions that we have made, the policies that we have formulated, the laws that we have passed, the institutions that we have established.
Certain decisions were made at the dawn of our democracy. It is time for these decisions to turn around and make us the society we want to be.
We do not become angry with the sea when it cleanses itself and we find filth on the beach. The sight and smell of filth on the beach might offend our senses.
However, we must rejoice in the fact that the sea, through its slow but powerful rhythms, its ebb and flow, has the means, the checks and balances, to cleanse itself, sometimes even of the seemingly cannot be cleaned. We must take comfort in the fact that, whilst the filth lies rotting on the beach, we can swim confident in the knowledge that the water is clean.
Programme director, as I move towards concluding, I would like to touch on the very important matter of cooperation between all organs of state and the state institutions supporting constitutional democracy. The Constitution provides that other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions and that no person or organ of state may interfere with the functioning of these institutions.
We are informed, regrettably, that the response from organs of state is not always in keeping with the letter and spirit of the Constitution. Letters remain not responded to and in some cases, even unacknowledged; simple requests for information are not met and reports or findings are not complied with. This is totally unacceptable.
As government, we are committed to working with state institutions created to support our constitutional democracy such as the Public Protector without compromising their independence. As the Department of Justice and Constitutional Development, we have a political responsibility to support this office.
It is for this reason that we will do everything required of us by the law and the Constitution to assist in ensuring the proper, effective and efficient functioning of the Office of the Public Protector and other state institutions supporting constitutional democracy.
Programme director, having said what we have said, and assuming that it is true that, having made decisions, our decisions then turn around and make us. What do we say about our decision to establish a Public Protector and other state institutions supporting constitutional democracy?
We are confident that the comprehensive input by the Public Protector and the collective wisdom that she has brought together here today will assist us in answering this question.
I thank you.
Issued by: Department of Justice and Constitutional Development
29 March 2010
Source: Department of Justice and Constitutional Development (http://www.justice.gov.za/)
