CAROA 6th BIENNIAL CONFERENCE
Integrity the Foundation of Good Governance
MAKING INTEGRITY REAL CHALLENGES AND LESSONS
OF EXPERIENCE
Wednesday, November 03 11, 2010
PUBLIC PROTECTOR SA, ADV THULISILE MADONSELA
MAKING INTEGRITY REAL: CHALLENGES AND
LESSONS
• Public Protector’s
• Mandate, Role , Approach to Good
Govern“If the Ombudsman is to
9. Lessons Learned
succeed in giving a voice to the
people while reconciling the state
and citizens, trustworthiness is
paramount”
• nceandOverlaps with Other Oversight
Outline of Presentation
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Public Protector’s Mandate
Public Protector’s Key Mandate areas
Other Mandate Areas for the Public Protector
Mandate Implications for Integrity as the Foundation of Good
Governance
Integrity and Good Governance Central to Corporate Performance
Framework
How Does the Public Protector Get Involved
The Public Protector is Part of a Broader Integrity Framework
Making Integrity Real: A Few Case Studies From the Last 12 Months
Lessons Learned
1. Public Protector’s Constitutional Mandate
• The Public Protector(PP) is established under section 181 of
the Constitution and is given power by 182 of the Constitution
to strengthen and support constitutional democracy by
investigating 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(4) of the Constitution requires the Public
Protector to be accessible to all persons and communities
• The PP is appointed by President for a 7 year non-renewable
term following a 60% majority vote in Parliament
2. Public Protector’s Key Mandate Areas
Legislation that seeks to give effect to Section 182 (2) of the
Constitution has crystallized the Public Protector’s mandate
into the following Six Key Mandate Areas:
• Public Protector Act 23 of 1994 (PPA)
Broad mandate to correct or redress maladministration, service
failure, abuse of power, abuse of state resources or improper
conduct and related disputes in all state affairs or public
administration on receipt of a complaint or on own initiative,
through investigating, mediation, conciliation, negotiation or
any appropriate action, reporting and taking appropriate
remedial action.
2. Public Protector’s Key Mandate Areas
(cont.)
• Executive Members’ Ethics Act 82 of 1998 (EMEA)
Sole agency mandated by the Executive Members Ethics Act to
investigate all alleged violations of the Executive Ethics Code of
2000 on receipt of complaints from the President, a Member of
Parliament, a Premier or a Member of a Provincial Legislature
and report to the President or a Premier(within 30 days) who
must forward the Report to Parliament(within 14 days).
• Promotion of Access to Information Act (PAIA)
One of several agencies that are mandated to resolve disputes
regarding access to information requests through mediation,
conciliation or negotiation or any other expedient means
necessary or advise any complainant on appropriate remedies.
2. Public Protector’s Key Mandate Areas
(cont.)
• Protected Disclosures Act 26 of 2000 (PDA)
One of the agencies mandated to receive and investigate a
protected disclosure under the Protected Disclosure Act. The act
regulates the protection of whistle-blowers.
• Prevention and Combating of Corrupt Activities Act (PCCAA)
Mandated to use powers conferred by the Public Protector Act,
to investigate and resolve allegations of improper or dishonest
acts or omissions or offences under Part 1 to 4 of Chapter 2 of
the Prevention and Combating of Corrupt Activities Act of 2004,
with respect to public money.
2. Public Protector’s Key Mandate Areas
(cont.)
• Housing Protection Measures Act
The Public Protector is mandated to review any decision or
action of the National Home Builders Registration
Council(NHBC), its staff or its agents in accordance Section 22 (4)
of the Housing Protection Measures Act of 1998, using powers
conferred by the Public Protector Act.
3. Other Mandate Areas for the Public
Protector
In addition to the above core mandate areas the Public Protector
plays a role under the following laws:
Electoral Commission Act 51 of 1996 (PP is a Member of
Selection Panel)
National Archives and Records Services Act 43 of 1996 (PP must
be consulted by the Council on investigations into the
unauthorized destruction of protected records)
National Energy Act 40 of 2004 (PP competent to receive
protected disclosures on energy matters)
Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 (PP is an Alternative Forum for resolving disputes
under the Act)
3. Other Mandate Areas for the Public
Protector (cont.)
 Public Finance Management Act 1 of 1999 (Accounting Officers submit to
relevant treasury a certificate from the Public Protector when a donor or
sponsor requests to remain anonymous)
 Lotteries Act 57 of 1997 (PP authorized to receive a bona fide confidential
disclosure or publication regarding grant application or grant itself)
 Special Investigation Units and Special Tribunals Act 74 of 1996 (Head of
SIU may refer to the Public Protector any matter which, in his or her
opinion, could best be dealt with by the Public Protector and vice versa)
 National Environmental Management Act 108 of 1999 (Desirability of
resolving differences and disagreements speedily and cheaply)
4. Mandate Implications for Integrity as
the Foundation of Good Governance
• Good governance presupposes that those
governing do so in compliance with the
constitution and other regulatory provisions,
remain true to their mandate and are
accountable to the mandate givers while
yielding value to all
• Maladministration is the opposite of good
governance
• Integrity is a core element of good governance
4. Mandate Implications for Integrity as the
Foundation of Good Governance
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We’ve heard that the English word ‘integrity’ is derived from the Latin
word integritas, meaning ‘unaffected, intact, upright, reliable’. “Integrity”
consists of a lot of what can be described as ethical and moral values or
civilised values includingCompleteness (It means having all necessary parts, elements, or steps;
highly proficient; totally, absolutely, thoroughly and fully carried out)
Sincerity (It means fairness and straightforwardness of conduct;
adherence to the facts.
Honesty
Honor (It suggests an active or anxious regard for the standards of one's
profession, calling, or position.
Probity (It implies tried and proven honesty or truthfulness)
Incorruptibility and soundness
4. Mandate Implications for Integrity as
the Foundation of Good Governance
• Public Protector’s relationship with integrity
has two key dimensions: Own integrity and
promoting integrity in the conduct of state
affairs. The two are interrelated.
• Regarding the state, the Public Protector has a
reactive and a proactive mandate regarding
ensuring that state affairs are conducted with
integrity and general good governance
4. Mandate Implications for Integrity as
the Foundation of Good Governance
• The Public Protector:
- Investigates on the basis of a specific
complaint regarding service failure and
conduct failure
- Has the power to conduct own initiative
investigations
- May conduct systemic investigations
- May also resolve PAIA disputes
5. Integrity and Good Governance Central to
Corporate Performance Framework:
Vision
A trusted, effective and accessible Public
Protector that rights administrative wrongs
and consistently acts with integrity to ensure
fair, accountable and responsive decisionmaking, service and good governance in all
state affairs and public administration in every
sphere of government.
• In practice this translates into a two pronged approach
that involves promptly redressing individual
administrative wrongs while facilitating systemic change
to transform the character of the state by
institutionalizing good governance
5. Integrity and Good Governance Central to
Corporate Performance Framework:
Mission
To strengthen constitutional democracy in
pursuit of our constitutional mandate by
investigating, rectifying and redressing any
improper or prejudicial conduct in state
affairs and resolving related disputes through
mediation, conciliation, negotiation and other
measures to ensure fair, responsive and
accountable public sector decision-making
and service delivery.
5. Integrity and Good Governance Central to
Corporate Performance Framework:
Core Principles and Values
Anchored on the supremacy of the Constitution and rule of law,
basic values and principles governing public administration as
envisaged in Chapter 10 of the Constitution, Batho Pele
Principles and International Ombudsman Principles, the work of
the Public Protector is informed by the core principles of:
Accountability, Integrity and Responsibility and the values of:
•Independence and Impartiality
•Human Dignity
•Equality
•Ubuntu
•Redress
5. Integrity and Good Governance Central to
Corporate Performance Framework
Core Principles and Values (cont.)
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Accountability
Integrity
Responsiveness
Transparency and
Justice and Fairness
5. Integrity and Good Governance Central to
Corporate Performance Framework:
Service Promise
The Public Protector seeks to:
1) Be trusted by and accessible to all persons and communities
2) Provide Prompt Remedial Action
3) Promote good governance in the conduct of all state affairs
To achieve the above institutional transformation and work
reorganisation is taking place to achieve:
4) An effective and efficient organization
5) An optimal performance and service focused culture
6. How Does the Public Protector Get Involved
Who May Initiate a Case?
A case may be initiated by any of the following:
Public Protector Act and Others
1) Member of the Public/Organisation
2) Members of Parliament;
3) Public Protector;
4) Organ of State/ Referral Body;
Executive Members’ Ethics Act
1) President/Premier
2) Member of Parliament/Member of Provincial Legislature
Other Mandate Areas: Locus Standi determined by each statute
6. How Does the Public Protector Get Involved
How do you initiate a case?
1) Cal Toll-free line: 0800 11 20 40;
2) Visit any of the Public Protector. 20 offices exist across the
country divided into :
• 1 National Office
• 9 Provincial Offices and 10 Regional Offices
3) Participate in any outreach activity e.g. Mobile Office, clinics,
TV or radio programme
4) Write to the Public Protector
5) Complete a form on the website: www.publicprotector.org or
6) Send an email to regristration2@pprotect.org
7. The Public Protector is Part of A Broader
Integrity Framework
• A familiar starting-point for the concept of a National Integrity
System articulated by Transparency International is the
graphical metaphor of an ancient ‘Greek temple’.
7. The Public Protector is Part of A Broader
Integrity Framework
The Public Protector has a very general mandate regarding
oversight over administrative actions of government. Because of
this, the mandate overlaps with virtually every other oversight
body, including Parliament and the courts and particularly the
following oversight agencies:
1. Auditor General (e.g. Tender Irregularities)
2. Human Rights Commission (e.g. ARV Case);
3. Commission on Gender ( Funding of Women in Sport Case);
4. CRC Commission ( e.g. Chieftaincy Dispute)
5. Public Service Commission (e.g. Employment Irregularities)
6. Judicial Inspectorate of Prisons(e.g. Disappeared Prisoner’s
Art Case)
7. The Public Protector is Part of a Broader
Integrity Framework
• Inspector General of Intelligence (e.g. a Former Security Agent
alleging prejudicial treatment)
• Special Investigation Unit (e.g. Police Leases Case)
• Judicial Service Commission (Court related matters other than
those relating to judicial functions)
• Magistrates Commission (Court related matters other than
those relating to judicial functions)
• Independent Electoral Commission (Improper conduct by
state actors in the context of elections and management of
public funds allocated to political parties)
8. Making Integrity Real: A Few Case Studies
From the Last 12 Months
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Two key dimensions of integrity in the work of the Public Protector:
Own and institutional Integrity
Integrity in the management of state affairs
The First Test: EMEA and the President
The Second Test: EMEA2: The Minister who wouldn’t mind his own
business
Other Milestone Cases
State and Party: Integrity under threat SGL and Midvaal state contracts)
Ghost Employee: Intern’s salary paid to someone else
Still Employed: Pensioner’s savings paid ten years earlier
Missing Social Grant: Child grant paid to someone else
Immigration: Foreign national’s ten year quest for permanent residence.
9. Lessons Learned
• Integrity is like leadership. If you are the only one convinced that you have
it, the reality is you don’t have it
• For the Ombudsman to succeed in the role of giving the people a voice
while reconciling citizens with the state, trust is paramount
• Three levels of integrity are critical: Personal, Institutional and State
affairs
• Collaboration among oversight agencies is important. E.g. Good
Governance Conference in October 2010
• Getting the state’s buy-in on the value of integrity and general good
governance is important: Annual Public Protector Good Governance Week
is one of the measures
• Effective communication is important
9. Lessons Learned
– Reputation is critical for the success of the Public
Protector (Ombudsman)as a credible brand
– Promise keeping is far more important than promise
making
– The dual mandate of redressing service failure while
helping the state to deal with conduct failure presents
challenges that need to be managed delicately. Current
measures include separation of functions and re-skilling
– Oversight agencies are expected to lead by example:
Living the three principles of accountability, integrity and
responsiveness pays
Thank You
“ Even the most benevolent of governments are made up of people with all
the propensities for human failings. The rule of law as we understand it
consists in a set of conventions and arrangements that ensure that it is
not left to the whims of individual rulers to decide what is good for the
populace. Administrative conduct of Government and Authorities are
subject to the scrutiny of independent organs. This is an essential
element of good governance. It was never reason for irritation but rather
a source of comfort when these bodies were asked to adjudicate on the
actions of my government and Office and judged against it…..I drew
reassurance that ordinary citizens of my country would be protected
against abuse no matter from which quarter it would emanate. Similarly,
the Public Protector(Ombudsman) had on more than one occasion been
required to adjudicate in such matters”(Nelson Mandela)
0800 11 20 40
www.publicprotector.org
Accountability. Integrity. Responsiveness