Address by Public Protector Adv Thuli
Madonsela during Parliament’s Consultative Seminar in Cape
Town, Western Cape
Friday, 16 March 2012
Chairperson and Speaker of the Free State Provincial
Legislature, Hon M B Sesele;
Speaker of the National Assembly, Hon Max Sisulu;
Head of the European Union Delegation to South Africa, HE
Ambassador, R van de Geer
Speaker of the Northern Cape Provincial Legislature, Hon J F
van Wyk;
Hon Masutha of the Standing Committee on the Auditor
General;
Chairperson of the Public Service Commission; Mr B Mthembu;
Acting Chairperson of the Commission for Gender Equality, Dr
T Maitse;
Prof Shadrack Gutto from UNISA’s Centre for African
Renaissance Studies;
Ms P Mbele from Positive Women’s Network representing the
civil society;
Dr T Hughes representing Institutions of Higher Learning;
Members of the media;
Ladies and gentlemen;
Ladies and gentlemen
It is an honour and
great privilege to participate in this important
consultative seminar of the legislative sector of our
country. I am sincerely grateful to Parliament for the
opportunity.
I am particularly delighted that our legislative sector
leadership had the foresight to include a session on the
role of Institutions Supporting Constitutional Democracy (ISCD)
in facilitating effective and proactive oversight over the
executive, in this seminar on strengthening democracy
through global collaboration of legislative oversight.
My role is to comment on the paper presented by Adv TM
Masutha on the role of ISCD in facilitating effective and
proactive oversight over the executive.
ISCD are established under Chapter 9 of the Constitution to
strengthen and support constitutional democracy. Section
181of the Constitution provides the following:
- The following state institutions strengthen
constitutional democracy in the Republic:
(a) The Public Protector,
(b) The South African Human Rights Commission,
(c) The Commission for the Promotion and the Protection
of the Rights of Cultural, Religious and Linguistic
Communities,
(d) The Commission for Gender Equality,
(e) The Auditor General,
(f) The Electoral Commission
- These Institutions are independent and subject
only to the Constitution and the law, and must be
impartial and must exercise their powers and perform
their functions without fear, favour or prejudice.
- Other Organs of State, through legislative and
other measures, must assist and protect these
institutions to ensure their independence, impartiality,
dignity and effectiveness of these institutions.
- No person may interfere with the functioning of
these institutions.
- These institutions are accountable to the
National Assembly and must report their activities and
the performance of their functions to the National
Assembly at least once a year.
What immediately struck me about the
paper was the fact that it accurately captures the
centrality of “the governance goals of greater
transparency, accountability and participation in the
legislature’s performance of its primary functions- the
legislation (law making), overseeing the executive and
representing citizens”.
The paper further accurately highlights the principal
role of the legislature in promoting good governance, a
function seen to be performed in collaboration with
institutions supporting democracy in contemporary
democracies. The paper states that:
“Effective oversight requires members of the
Legislature to fully understand the constitutional
injunction and rationale behind the notion of
accountability of government. Therefore, oversight helps
to promote the constitutional values of transparent and
accountable government and good governance.”
The central thesis in the paper is the question whether
or not legislatures are making full use of ISCD to
complement their oversight of the executive through
adequate use of briefing opportunities by these
institutions.
The conclusion is that there is some utilisation,
particularly of the Auditor -General, but the
utilisation is not optimal as there are missed
opportunities. The justification for the conclusion is
that Parliament mostly engages with these institutions
through annual reports, an oversight mechanism regarded
as reactive and sometimes ineffective. The paper argues
that engaging through annual reports does not enable the
Legislature to fully utilize the information and
knowledge held by these institutions. A point is made
that these institutions need not report once a year and
may report anytime the Legislature requires them to.
It is my considered view that the paper’s analysis of
the utilisation of ISCD by the legislatures to reinforce
their own role as the principal oversight bodies is
sound. In the context of democracy being a dialogue
between citizens as the power givers and those they have
entrusted with public power, it makes sense to recognize
and fully utilise all levers that enhance that dialogue.
It is also important to strengthen synergies between
such levers.
The paper correctly points out that there are indeed far
more opportunities for synergies and leveraging of the
strengths of most of these institutions in favour of
enhanced effectiveness in Parliamentary oversight. I
will elaborate on this observation further below. I’ve
decidedly used “most” here in recognition of the fact
that these institutions are diverse. For example, the
Independent Electoral Commission’s work has very little
to do with executive oversight.
Something particularly worth noting in the context of a
discourse on the role of ISCD is the fact that this
paper is one of the few narratives that firmly locates
the innovation of ISCD in the modern democracy.
Elsewhere I have referred to the paradigm that informs
this narrative, which factors in the transformative
impact of Chapter 9 of the Constitution as the “After
Constitution” paradigm.
The alternative involves narratives whose democracy
architecture does not transcend the traditional checks
and balances represented by three arms of government
that exercise diffused state power in a manner that
involves checking and balancing each other.
Elsewhere I’ve referred to this paradigm as “Before
Constitution” paradigm. What I seek to communicate is
that such thinking continues with ‘business as usual’ as
if no change was made when this country adopted a
Constitution that incorporates an elaborate
institutional framework that adds to and seeks to
complement the traditional oversight mechanisms, which
primarily include Parliament and the courts. In other
words such narratives are stuck in a paradigm that does
not factor in the transformational impact of the
fundamental architectural adjustments made in 1993 and
1996 when a Constitution that includes Chapter 9 was
adopted.
When I am confronted with conduct characteristic of the
“Before Constitution” paradigm in my role as the Public
Protector I’m often reminded of Alice in Wonderland.
I’ve read Alice in Wonderland, you probably recall the
situation where Alice is invited to a party but when she
gets to the door she has to force her way in and she
when looks for space around the table there’s none.
What is really meant by the Before Constitution paradigm
is untransformed conduct whose impact is failure to
accord legitimate space to ISCD to play a role in the
accountability architecture leaving them in an invidious
position where they find themselves having to elbow
themselves in to create operational space for
themselves.
Interestingly, the struggle to find space has not been
equally experienced by all of the ISCD. Let us take for
example, the Auditor -General, which incidentally is the
first and most elaborately discussed in the paper.
Why has the Auditor-General faired better with regard to
being embraced by Parliament as a partner complementing
and strengthening Parliament’s oversight role over the
Executive. One of the key reasons is the fact that the
Auditor -General, which is a hundred year old
institution predates constitutional democracy in this
country. This office was fully entrenched in the
country’s democracy architecture long before the post
apartheid constitutional dispensation.
Most of the others are innovations of the new
constitutional framework and to embrace them fully,
requires more thinking and work. This applies even to
the South African Human Rights Commission even though
the institution deals with the very old issue of
fundamental human rights. It is even much more difficult
to fully embrace the Public Protector, which is not only
15 years old in our democracy but also a relatively new
innovation in the global architecture of democracy.
Established about 202 years ago, in Sweden the Public
Protector or National Ombudsman as known in Sweden and
in global circles is an innovation that has sought to
address gaps in the classical checks and balances that
seek to curb excesses and deviations in the exercise of
public power by those entrusted with it by the citizens.
The Ombudsman institution, which has become mandatory
feature in European democracies, operates independently
while working closely with the Legislature to help
citizens hold those they have entrusted with public
power, particularly in the Executive branch of
government, accountable for their conduct. The ultimate
aim is to ensure that public power is exercised fairly,
justly and lawfully. Linked to this is the goal of
ensuring that public resources are utilized in
accordance with the law and other enabling instruments
in the interest of the people as the ultimate
beneficiaries and owners. The ultimate result is good
governance which yields a better life for citizens,
which includes greater enjoyment of all human rights and
freedoms.
This brings me to the role of human rights institutions.
All of the traditional branches of government have a
duty to protect and promote human rights and that the
judiciary has traditionally been seen as the anchor of
human rights protection, particularly in the era of
constitutional democracy. Human Rights institutions are
a key feature of modern institutions seeking to
strengthen the protection and promotion of human rights.
However, the amount of space to be accorded to this
institution is still at an elementary stage of our
democracy. The diminished emphasis on human rights in
the post Mandela era has also not helped issues.
The Commission for Gender Equality has had a rockier
journey in finding its place in our democracy, including
as a valued partner to Parliament. The reasons are
varied and internal dynamics, including governance
challenges in this institution have also not helped the
situation.
The Commission on Cultural, Religious and Linguistic
Rights had a delayed birth, which has impacted
negatively on its role. It has also suffered more severe
resource constraints than the others.
The Independent Electoral Commission on the other hand
has made an indelible independent mark in our democracy.
Its role as indicated earlier has less to do with
Executive oversight. A partnership with Parliament in
this regard is accordingly not part of its mandate.
What opportunities have been missed by Parliament with
regard to leveraging the roles of ISCD to strengthen its
own oversight role?
We have already heard that through annual reports some
dialogue takes place on governance gaps that need to be
addressed. However, it has been pointed out that this
opportunity is not fully exploited. As Public Protector
I can attest to that. When my office delivers its report
to Parliament the dialogue is mostly around how our own
accountability for the public resources allocated to my
office in the year under review.
Among the missed opportunities are opportunities to ask
questions about the institution’s impact on
maladministration and the state of compliance by organs
of state within the Executive. Opportunities for picking
up areas for law reform have also been missed. Special
reports have not at least in the last two years been
discussed. At some stage it seemed that the Vembe
Pension fund report was going to be discussed but it was
withdrawn at the last minute never to be seen again.
There are also inadequate joint ventures, including
referrals and public outreach. However, there is
positive progress in this regard. Examples include
increased invitations to ISCD at national provincial and
local government levels when legislatures engage
communities. There are also a number of collaborative
ventures. In so far as the Public Protector is
concerned, an increasing number of complaints are lodged
by parliamentarians while a few investigations have been
initiated through a referral by Parliamentary
Committees. Examples in this regard include
investigations under the Executive Members’ Ethics Act.
There are only two meaningful engagements that
Parliament currently has with the Public Protector,
namely the strategy presentation and the annual report
session.
Can more be done?
It is certainly possible for Parliament to extract more
value out of ISCD to strengthen its own oversight role.
On the question of ensuring more opportunities for
engagement, the Portfolio Committee on Justice and
Constitutional Development has acknowledged this. The
Committee has called for more opportunities for
engagement between Parliament and the Public Protector.
The need for more engagement is in line with the view
taken by the Kader Asmal Commission although the channel
for engagement recommended by Professor Asmal was
different.
Another area that is full of possibilities is the area
of mutual referrals. In UK even mutual referral with the
courts has been considered as a possibility. This
emerged in the Law Reform Commission’s Access to Justice
Report. The interdependences must without doubt be
harnessed in the context of respecting the independence
and impartiality of each of the institutions involved.
Collaboration in community outreach or public
engagements is an important area where Parliament has a
potential to leverage the strengths of ISCD to enhance
its own oversight role over the Executive. As indicated
earlier, there is a fair amount of collaborative work
already. Where this has happened optimally, legislatures
invite ISCD to public engagement events. During the
field work the ISCD provide information about their
services and also provide some of those services on the
spot. The Public Protector provincial offices have
participated regularly in such ventures. The feedback
received indicates that communities appreciate these
opportunities.
Where there are service protests Legislatures can
collaborate with ISCD to ensure where thorough
investigations are needed these institutions do so while
Parliament addresses what needs to and can be
resolved immediately. The key factors in this regard are
the Petitions Committees. The Public Protector already
works with some of these.
What are some of the factors behind the missed
opportunities?
One of the key impediments to the realization of the
potential value of ISCD to strengthen Parliament’s
oversight role is what I refer to as the Cinderella
location of many ISCD. This is particularly the case
with regard to the Public Protector, the South African
Human Rights Commission; the Commission for the
Protection of the Rights of Cultural, Religious and
Linguistic Communities and the Commission for Gender
Equality. One of the reasons it is not possible to
engage fully with the outputs of these institutions,
particularly the Public Protector and the South African
Human Rights Commission, is the location in the
Portfolio on Justice and Constitutional Development,
which has its own overflowing programme on Justice,
State Legal Affairs and Constitutional Development
matters.
Another key impediment is lack of shared understanding
of the role, power and responsibilities of these
institutions. For the Public Protector, one of the
challenges that does not seem to get resolved is, what
exactly does the Constitution expect from the Public
Protector when it directs the Public Protector in
section 182(1)(c) to take appropriate remedial action
after investigating and reporting on an allegation or
suspicion of improper or prejudicial conduct in state
affairs or the public administration.
There are those, including a few members of Parliament,
who insist that all the Public Protector has to do is
make recommendations and walk away. Would this comply
with the constitutional injunction to “take appropriate
remedial action”? What about the Public Protector Act’s
directive that the Public Protector is to resolve and
redress allegations of maladministration, abuse of power
and abuse of state resources.
In other democracies it is expected that after making a
determination (finding in our legislation) the matter is
not concluded until the Ombudsman has ensured
implementation of remedial action. If all else fails to
ensure implementation the Ombudsman requests a
Parliamentary debate on his or her special report. At
such debate Parliament would ask the organ of state in
question what is unreasonable about the findings of the
Ombudsman to justify impossibility or inappropriateness
of remedying or redressing the consequences of the
maladministration determined by the Ombudsman. This
practice reinforces the oversight role of the
Legislature.
A related impediment is the tendency to view these
institutions in uniform terms whereas they are different
but complementary. For example, the Auditor -General
audits on the basis of sampling cases of compliance with
the regulatory framework whereas the Public Protector
investigates specific alleged violations, administrative
injustices or incidences of maladministration. It is
important to note that the Public Protector may and does
conduct own initiative and systemic investigations and,
in this regard, acts as a catalyst for governance
transformation where a need is detected.
Lack of role clarification is important, both in terms
of what really is expected by the Constitution from
these institutions and in terms of the opportunities
available for these institutions. Optimal collaboration
with a view to strengthening Parliament’s oversight role
requires that shared space be viewed as an issue of
complementing each other as opposed to the tendency to
view the shared space in competitive terms.
Under resourcing of both Parliamentary structures and
ISCD also serves as one of the major impediments.
What are the possibilities?
My recommendation is that Parliament looks closely at
the Swedish Model. The Swedish model incorporates a
Parliamentary Committee on the Constitution.
Institutions such as the Ombudsman are overseen and
supported by this Committee. In our context, the Office
for ISCD could provide support to the Committee. This
office is particularly well positioned to provide
support in regard to analysing the reports of ISCD. It
can extract trends in terms of maladministration,
particularly systemic service failure. It can also
isolate systemic issues of ethics violations, governance
failure and abuse of power or state resources, including
corruption. The office can also extract and advise on
recommendations regarding policy and legislation reform.
An ideal way forward is the systematic and managed
implementation of the Asmal report with appropriate
modifications detected by time and additional
perspectives on the findings.
The other weaknesses identified in the discussion on
missed opportunities and factors underpinning
impediments need to be examined closely and measures
taken to address them. This includes review of the
funding model to ensure that the institutions receive
direct funding as is the case in other democracies.
It also includes resolving the questions around what
really is the space accorded to these institutions by
the Constitution and how are they to be harnessed to
support Parliament’s oversight role while supporting
their independence and impartiality. At the heart of the
question is achieving a common understanding of what the
Constitution means when it directs the ISCDs to support
and strengthen constitutional democracy. A related
question relates to clarifying the unique role of each
of these with regard to strengthening constitutional
democracy.
Lastly Parliament need not wait until there are holistic
structural changes. Many valuable opportunities for
leveraging the strengths of ISDs to strengthen
Parliament’s oversight role can be exploited
immediately. This includes the analysis of annual and
special reports by the office in the Office of the
Speaker. It further includes protocols regarding
referral of matters and collaboration in regard to
community outreach and/ or community dialogues. It also
involves sharing of information and ideas through
informal dialogues beyond the presentation of formal
reports.
The Public Protector initiated a focus week that was
until 2011 referred to as the Public Protector Good
Governance Week. The 2011 Good Governance conference
which forms part of the standard activities of the focus
week resolved that the focus week will forthwith become
a collective venture of the oversight sector referred to
as the National Good Governance Week. The legislative
sector can join in and assume a leadership role in the
Good Governance Week initiative. There is also
Constitutional Week. Currently constitutional week
focuses on courts to the exclusion of Chapter 9. A
paradigm shift needs to take place in recognition of the
role of ISDs as envisaged in the Constitution. This is
in line with what I referred to earlier as an After
Constitution paradigm.
Conclusion
While Parliament is indeed harnessing opportunities
presented by ISDs to strengthen its own oversight role
over the Executive but there there are opportunities
that are yet to be exploited. An effective exploitation
of available opportunities will not only strengthen
Parliament’s oversight role but will also go a long way
towards strengthening and consolidating constitutional
democracy.
Guarantees for success include respecting the
independence, impartiality and constitutional
responsibilities of each institution. They also include
appreciating and exploiting the diversity of ISDs.
Empowerment through resources and endorsement of
findings is also important.
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