Address by the Public Protector Adv Thuli
Madonsela during the Commemoration of Human Rights Day in
Bethlehem, Free State
Wednesday, 21 March 2012
Programme Director;
Member of Provincial Legislature;
Deputy Public Protector Adv Mamiki Shai and CEO of Public
Protector South Africa, Themba Mthethwa;
CEO of the Human Rights Commission
Executive Mayor Councilors present;
Traditional leaders present;
Bethlehem Station Commander;
The communities of Bohlokong and neighbouring areas;
Distinguished guests;
Members of the Media
Fellow people of South Africa;
It is a great honour for me to be back here and to engage
the people of this province in dialogue.
Last year we visited Bloemfontein and Bradfort respectively,
during our annual Public Protector Stakeholder Consultative
Forum. We meaningfully interfaced with members of the public
about our work and people’s concerns regarding governance
and service delivery, particularly at local government
level. We will be going back to Bradfort shortly to give the
people feedback on the progress we have made in the pursuit
of their service delivery concerns.
Through such dialogues with communities we primarily seek to
introduce my office to the people to create a basis for
joining hands in ensuring that our democracy works in line
with the vision that inspired the architects of our
democracy. How to act collectively as builders to ensure
that our country is indeed the democracy we want it to be.
The focus of my address today is about taking action as
builders of democracy and human rights. How do we do that?
And where does the Public Protector fit in.
We are gathered here today to commemorate our national human
rights Day-in a month dedicated to remembering the abuse of
Human Rights this country has ever endured in the past.
During this month we bow our heads and remember all those
who died in while engaged in the struggle against the
injustices of the apartheid regime.
We commemorate this month under the theme: “Public
Protector working for Human Rights based society.”
The national event will be celebrated tomorrow with the main
event held at the Kliptown Memorial Museum in Johannesburg
where His Excellency President Jacob Zuma will give the
keynote address.
What is the origin of our National Human Rights Day?
You will recall that 52 years ago on 69 people of our people
were killed in Sharpeville for protesting and fighting for
their rights against the pass laws and related human
indignities that went with legalized injustice under
apartheid.
While it is sad that those people who died while fighting
for their rights will never get the chance to enjoy the
fruits of the democracy they fought for, it is heartening to
note that they did not die in vain. Today we count those
simple people among the architects of our democracy, the
central feature of which is our globally celebrated
Constitution.
Programme Director
Our commemoration of National Human Rights day is
characteristic of one of our strengths as a nation, the
ability to build hope out of pain. As a nation we are known
to build admirable things out of adversity. Think about our
icon the inimitable Former President Nelson Mandela and his
contemporary. If they and others before and after them, had
not had the wisdom to turn pain and adversity into an
opportunity to build who knows where we would be as a
country.
But what was the point of the sacrifices? Put differently,
what did the people of Sharpville and others who sacrificed
for democracy want from the country of their birth and if
they were alive, what would they probably want to see?
It was all about inclusive democracy and human rights
anchored in human dignity. The people wanted to be affirmed
as human beings worthy of being being treated with equal
consideration by the state and fellow human beings
regardless racial, gender, age, nationality and other human
qualities.
Specifically, the people wanted an equal say in the
governance of their country. They wanted equal justice,
freedom of expression, freedom of movement, social justice,
including economic justice, access to education, health,
decent homes and all the fundamental rights enshrined in the
1948 UN Declaration of Human Rights. Indeed these rights and
freedoms were echoed in the Freedom Charter, which boldly
starts with the pronouncement “The people shall govern”.
Do these things still matter as we approach 18 years of
democracy? If they do how far are we in making these a
reality to all the people of South Africa? If there are
gaps, what are the reasons for such gaps? Above all what is
our role in ensuring that these human rights and freedom
become a reality for all people of this country without
undue delay?
This is what I want to engage you about in the context of
the contribution of my office to the realization of human
rights by strengthening constitutional democracy focusing on
good governance and responsive service delivery.
Programme Director
There is no doubt in my mind that the issues of human
dignity, human rights and freedoms that inspired the people
of Sharpville and others that sacrificed for democracy
remain central today.
But is there a difference between the context in which the
people of Sharpville and South Africa demanded human rights
and the situation in our time? There is a big difference
indeed.
The main difference is that we now have a Constitution that
not only accepts but specifically entrenches the principle
that “The People Shall Govern” When adopting our interim
Constitution in 1993 and final Constitution in 1996, we
became a constitutional democracy.
The Constitution became the supreme law of our land. Two of
the key sections of the Constitution that all of us should
know are the preamble and the Bill of Rights.
Before then we had legalized injustice characterized by
entrenched social exclusion. The people of Sharpville and
others had to protest to be heard. There were no channels
for meaningful engagement between the people and those in
government. People had to kick, scream and often destroy
things to be heard. Do we still need to do that?
Referring to the Constitution as a bridge from the past, the
preamble promises to create a foundation for a better life
for all.
The Bill of Rights reinforces the promise by promising a set
of fundamental human rights and freedoms that all the people
of South Africa are entitled to. These include civil and
political rights that include rights against police
brutality and unjust detention or imprisonment.
These rights and freedoms include the right to equality,
whose essence is the right to be treated with equal
consideration no matter who you are whether rich or poor,
young or old or someone with a disability.
An important innovation in our Bill of Rights is what we
refer to as social and economic rights. These include the
right to access to health care, access to education and
access to adequate housing. The Constitution also entrenches
a right to economic activity and a right to property.
Although not specified, at the core of social economic
rights is freedom against poverty, hunger and related
suffering that strips away human dignity.
The question that interests all of us gathered here is how
far are we to becoming that society and that where these
basic rights cannot be taken for granted by the people.
The unfortunate answer is that 18 years into democracy, we
are not there yet. Why are we not there yet? There are
several reasons. The reason we are familiar with is that the
legacy of thousands of years of colonialism and about half a
century of apartheid could not have been undone in 18 years?
But is that the full answer? What about the open toilets we
have just heard about? What about the stories of public
funds that are siphoned in pursuit of interest in the state
procurement system.
What about those that overcharge for building state
infrastructure such as RDP homes and end up delivering
shoddy service or nothing at all. And what about the service
failure that is due to the employment of friends and allies
that lack the knowledge, skills and experience to deliver
requisite services?
Is it perhaps true that many of the breaks we are
experiencing in service delivery are our own making?
Specifically, isn’t time we admitted that maladministration,
self-interest, corruption and other maladies of our own
making are slowing down or derailing service delivery?
But what do we do as communities when there is service and
conduct failure in government? Do we take to the street in
protest? Do we destroy the very infrastructure we need for
service delivery? Do we harm fellow people of South Africa,
including Councillors and foreign nationals?
If we do such things are we strengthening or consolidating
our constitutional democracy? When we destroy public
infrastructure aren’t we sabotaging the very service
delivery we need in pursuit of the constitutional promise of
a better life? When we harm fellow human beings be they in
government or civil society aren’t we violating the very
human rights we seek for ourselves. Above all, is violent
protest consistent with the pronouncement that the people
shall govern?
This takes me back to the idea I started with, the idea of
working together as builders of democracy as opposed to
derailing or destroying democracy.
For me herein lies the distinction between builders of our
democracy and those derailing democracy.
I have already indicated that we do not face the same
barriers the Sharpeville people faced. The notion of
democracy as a dialogue did not apply to them because the
system did not give them a voice. When they tried to engage
they were imprisoned.
The people of South Africa today have a constitution that
defines their entitlements. There are laws, policies,
regulations and government planning frameworks that
elaborate on public power and resources are to be used to
deliver the services necessary for the realization of human
rights.
Is there a need to take to the street to demand
accountability? I don’t think so! Firstly, our constitution,
which is the envy of many nations, spells out what we are
entitled to by virtue of being human beings. That lays the
basis for holding those that exercise public power
accountable.
As indicated earlier, the Constitution is backed by laws
such as the Municipal Finances Management Act (MFMA),
various policies and other regulatory frameworks that makes
it clear what is to be delivered by whom and how. On the
basis of the Constitution and the supporting regulatory
framework empowers you to engage with persons in government
and to assess the merit of answers that are provided to you
when service or conduct fails within the state.
The Constitution is the supreme law of the land. When we
adopted it we parted ways with Parliamentary supremacy. This
means that no one, in the state is allowed to do anything
that is contrary to the provisions of the Constitution.
We also need to remember that democracy presents us with an
opportunity to elect people we want to represent our
interests every five years. If we do not like what they do
we can always recall them when a new election takes place.
What do we do we do between elections? This takes us to the
role of my office, the Public Protector. In their wisdom the
architects of our democracy saw it fit to add institutions
whose role is to support and strengthen democracy in the
architecture of our democracy. They thought that the
traditional checks and balances, including courts, that keep
those entrusted with public power in check, were not enough.
The Public Protector is one of several institutions that
seek to give people a voice to exact accountability from
those they’ve entrusted with public power when direct
accountability fails.
At the Public Protector, we see ourselves as a buffer
between the people and government. When direct communication
fails we enhance democracy by acting as a buffer between
government and the people. Inspired by the institution of
the Makhadzi in Vhenda culture, we often say we give people
a voice while enlarging the ears of government.
This is why when I started I said that my interest is to
engage you in a conversation about working together as
builders of democracy.
You can work with us by reporting any allegation or
suspicion of improper conduct or maladministration in state
affairs or the public administration. The Constitution gives
the Public Protector power to investigate report and take
appropriate remedial action if his or her investigation
confirms that there was improper or prejudicial conduct in
state affairs or the public administration.
The Constitution goes on to state that the Public Protector
has additional powers as conferred by nation legislation.
Indeed there are 16 statutes that give the Public Protector
additional powers.
The main statute is the Public Protector Act which
elaborates on the Public Protector’s jurisdiction of
maladministration. The Executive Members’ Ethics Act
positions the Public Protector as the agency responsible for
supporting the President in the enforcement of Executive
Ethics.
The Public Protector has a whistle-blower protection role
under the Protected Disclosures Act and is has an
anti-corruption mandate under the Prevention and Combatting
of corrupt Activities Act read with the Public Protector
Act.
She or he also serves as one of the Information regulators
under the Promotion of Access to Information Act and reviews
the decisions of the Home Builders Registration Council
under the Housing Protection Measures Act.
The Public Protector has vast powers to help you get
answers. These include the powers to subpoena any person or
information in the Republic of South Africa whether they are
in or outside government.
His/her powers include powers and the power to hold people
in contempt of the Public Protector, a power similar to
contempt of court.
That is why I have boldly stated that you never need to
embark on protest or to destroy anything to be heard. The
other institutions supporting democracy are also there to
give you voice.
As I conclude I want to thank the people of Bethlehem for
being democracy builders. Your being here in numbers,
suggest that you buy into the idea of democracy as a
dialogue. This is confirmed by the fact that some of you
wrote to me as soon as you knew I was coming to lodge
complaints on maladministration. You have not taken to the
streets.
I trust that you will continue to build democracy by
constructively engaging with those you’ve entrusted with
public power through the channels provided by the architects
of our democracy. You need to arm yourself with information
and knowledge about your rights and how government work.
That would place you in a position to ask the right
questions to the right people through the right channel.
Possessing information and knowledge will also ensure that
should you be in government in the future, you will be
equipped to do the right thing. This is what the Freedom
Charter meant when it said the “people shall govern.”
Violent protest cannot be reconciled with people governing,
or building democracy- it is anarchy in action. What bothers
me most is that some of the people that incite communities
towards violent protest are people without clean hands. Many
are involved in the corrupt tenders with inflated pricing
and shoddy service delivery. They are using you and
diverting you to focus on personalities instead of from
focusing on systems and asking the hard questions.
My office is here for you. Together we can strengthen and
consolidate democracy by ensuring that the state is
accountable, operates with integrity and government is
responsive to the needs of all people.
Thank you.
Adv Thuli Madonsela
Public Protector
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