Why I value my role as public protector
This week Thuli Madonsela was named among Time Magazine’s Top 100 Most Influential People in the World. Here she reflects on South Africa’s 20 years of freedom, and how her everyday focus is on ordinary people.
It was Nelson Mandela who once opined that even the most caring of governments in the world have, in their workforce, people who, like you and me, are fallible and prone to making mistakes.
In one of his masterstroke speeches, Mandela said the rule of law was there to ensure it was not left to the whims of individual leaders to decide on what was good for the people.
He highlighted that in South Africa, the rule of law made sure the administrative conduct of the government was subject to the scrutiny of independent organs of state, calling this an essential element of good governance built into the country’s constitutional order.
He explained: “An essential part of that constitutional architecture is those state institutions supporting democracy. Among those are the public protector, the Human Rights Commission, the auditor- general, the Independent Electoral Commission, the Commission for Gender Equality, the Constitutional Court and others.
“It was, to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and the office and judged against it. One of the first judgments of our Constitutional Court, for example, found that I, as president, administratively acted in a manner they would not condone.
“From that judgment, my government and I drew reassurance that the ordinary citizens of our country would be protected against abuse, no matter from which quarters it would emanate. Similarly, the public protector had on more than one occasion been required to adjudicate in such matters.”
As I pondered these profound words, I thought about the thousands of people who, day in and day out, look to my office to get relief in the face of indifference and after hitting brick walls in their daily struggles to get administrative justice from the state.
Often such cases go unnoticed because they rarely attract the kind of media attention enjoyed by matters involving so-called high-profile people.
When I took over as public protector, I wanted to tilt the scale in favour of cases involving such people.
We call them “Gogo Dlamini”, who really is our ideal complainant.
An example of such cases is that of a man who recently showed up at my doorstep, alleging that he had been plunged into a web of poverty after the state failed to disburse his pension benefits nearly 20 years after he was retrenched.
Our intervention in that matter saw the man getting what he was owed, with interest calculated from the day he was laid off to the day the capital amount was paid.
Two weeks ago, through similar interventions, we returned a Grade R teacher to work after being ousted under dubious circumstances. There are many more examples, including those of whistle-blowers who got their lives back after entrusting us with their complaints.
But my office’s mandate is not limited to administrative justice. Section 182 (1) of the constitution states that the public protector has the power 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”.
Section 182 (2) of the constitution states that the public protector has the additional powers and functions prescribed by national legislation. In pursuit of this subsection, the public protector has powers in terms of legislation such as Public Protector Act, Executive Members Ethics Act, the Protected Disclosures Act and Prevention and Combating of Corrupt Activities Act to investigate allegations of or suspected abuse of power, abuse of state resources, violation of the Executive Ethics Code, complaints made by whistle-blowers and corruption.
Noting the critical role the public protector plays in this area during his address to the African Ombudsman Summit in Kempton Park, Ekurhuleni in February, Chief Justice Mogoeng Mogoeng said: “The publication of the public protector’s reports and the huge media coverage they enjoy have probably discouraged multitudes from allowing greed to drive them down the wasteful expenditure of corruption lane.”
The cases we have dealt with in the area of corruption, abuse of power and abuse of state resources range from blatant theft to issues such as tender rigging, overcharging and false billing.
But why does this matter? It matters because where evidence of abuse of state resources has been found, we are able to help claw back resources wasted through corruption and other maladies to address service delivery deficiencies.
The matters I refer to above form part of more than 40 000 cases (figures not yet audited) my office dealt with in the financial year ended March 31, 2014.
Since its establishment in 1995, the Public Protector South Africa has dealt with tens of thousands of service failure complaints from members of the public and helped many to get their lives back.
The office has also received thousands of conduct failure complaints, assisting the state to identify and eradicate maladministration.
From the time I became public protector in 2009 to date, my office has handled a whopping 140 885 cases broken down per financial year. These include the more than 40 000 unaudited cases for the last financial year and the figure takes into account cases received during each of the financial years and those that would have been brought forward from one year into another.
Established by Section 181 of the constitution, the public protector, with other “Chapter 9 institutions”, has the mammoth task of strengthening South Africa’s constitutional democracy.
Although it was only established in 1995, globally, the public protector belongs to a family of institutions of the ombudsman, which is two centuries old.
It is said the institution of the ombudsman was born in Sweden in 1809.
In Africa, Tanzania became a pioneering state to establish such an office nearly 50 years ago.
The idea behind it was to have an institution that would serve as a buffer between the state and its people, curbing excesses in the exercise of state power and control over state resources.
This institution was meant to complement the traditional checks and balances carried out by courts and the legislature.
It was always meant to be unique, serving as a quick and cost-free mechanism for justice, employing inquisitorial rather than adversarial approaches.
Though the public protector has over the years striven to be a trusted, effective and accessible vehicle 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 every sphere of government, several challenges have plagued this institution.
These include resources that are not commensurate with the workload.
For example, without adequate resources, we will not be able to meet Section 182 (4) of the constitution, which enjoins the public protector to be accessible to all persons and communities.
A fairly new challenge involves the distorted interpretation of the role, mandate and powers of the office. The emerging trend is that of trying to narrow the office’s scope and powers.
From our side, we welcome any constructive criticism. No one, including the public protector, should be above scrutiny.
However, we should be able to distinguish between scrutiny and irresponsible acts that appear to be aimed at encouraging impunity and, by extension, creating an enabling environment for maladministration to flourish undeterred.
As we commemorate 20 years of democracy, we should, like Mandela, not view as irritations instances where we are advised that our conduct has been less than consistent with the constitution, the law and other regulatory instruments.
As a democracy, we have come a long way. Going forward, we need to pay attention to maladministration as a thief that is stealing away time and resources from efficient and inclusive service delivery.
Regardless of where we are, we need to guard jealously our treasured constitution, which is a road map to who we wanted to become when we embarked on this road in 1994.This we can do by playing our part honestly and diligently in taking a stand against bad governance and maladministration, thus ensuring an accountable state that acts with integrity while ensuring there is responsiveness to the needs of all our people.
* Thuli Madonsela is the public protector.
** The views expressed here are not necessarily those of Independent Newspapers.