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1. INTRODUCTION

PUBLIC PROTECTOR’S PRESENTATION MANDATE & FUNCTIONS 19 AUGUST 2014 Presented by Public Protector Adv Thuli Madonsela. 1. INTRODUCTION. 1.1 Opening Quote.

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1. INTRODUCTION

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  1. PUBLIC PROTECTOR’S PRESENTATION MANDATE & FUNCTIONS19 AUGUST 2014Presented by Public Protector AdvThuliMadonsela

  2. 1. INTRODUCTION

  3. 1.1 Opening Quote “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… 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 … arrogance, secrecy and corruption …” Former President Nelson Mandela on 26 August 1996

  4. 1.2 OVERVIEW OF PRESENTATION • Introduction   • Mandate • Role & Functions • Management of Overlaps • Structure and Operations • Other Matters for Parliament’s Attention • Conclusion

  5. 1.3 INTRODUCTORY REMARKS • The Public Protector is honoured and grateful for the opportunity to engage on the mandate and role of the Public Protector as one of institutions established by the founders of our democracy to protect the rights of our people and ensure good governance. • Engagement in line with agreement at our last meeting on the Strategic Plan and Budget with the Portfolio Committee on 4 July, a broader engagement with Members of Parliament is needed to brief Members of the Public Protector’s mandate and role – and strengthen our collaboration in the framework of our Constitution. This is indeed an opportune initiative and I would like to thank the acting Speaker, Honourable Tsenoli and the House Chairperson: Committees, Oversight and ICT for coordinating these engagements.

  6. 1.3 INTRODUCTORY REMARKS (contd.) • United in our common belief in joining hands in ensuring seamless and accordingly efficient and effective oversight in pursuit of good governance, strengthened democracy and the rule of law behind the dialogue • Timing coincides with stakeholder dialogue on “Joining Hands in Partnership against Maladministration and Corruption” • Chapter 14 of the NDP titled “Promoting Accountability and Fighting Corruption commences with the following: • “Every body assists the institutions we have creatively designed to meet varied needs; awe reach across communities to strengthen our resolve with honesty, to be set against corruption and dehumanizing actions.”

  7. 1.3 INTRODUCTORY REMARKS (contd.) • “The performance of state systems of accountability has been uneven enabling corruption to thrive” ( Introduction p401) • “Strengthen the multi-agency anticorruption system comprising, inter alia, SIU, PP, PSC, AG, AFU, Hawks & IPID(Introduction p401) • NDP approach consistent with Asmal Report and SCA sentiments in Public Protector versus Mail and Guardian case Regarding role and importance of Public Protector in the pursuit of good governance through public accountability • Believing that oversight is principally for Parliament on behalf of the people and is assisted in our multiagency oversight architecture by independent Institutions Supporting Constitutional Democracy, an Independent Judicial System and structures created by legislation and that transparency, including the role of the media is an important factor in public accountability by keeping people informed and engaged in democracy as a dialogue between them and those they have entrusted with public power and resources

  8. 2. MANDATE

  9. 2.1 CONSTITUTIONAL MANDATE • Section 182 of the Constitution provides that: (1) The Public Protector has the power, as regulated by national legislation- • 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 has the additional powers and functions prescribed by national legislation • The Public Protector may not investigate court decisions • The Public Protector must be accessible to all persons and communities

  10. 2.1 CONSTITUTIONAL MANDATE (contd.) • Section 182 of the Constitution provides that: (5)A report issued by the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that a report be kept confidential. • Conduct in all organs of state are covered in all 3 arms of government, including more than 300 municipalities, hospitals, schools and para-stastal bodies • Only decisions of courts may not be reviewd

  11. 2.2 CONSTITUTIONAL VALUES • Informed by Constitution and heeding call by NDP and SONA, among others • Constantly Balance universal accessibility (in compliance with section 182(4) of the Constitution), with complementary oversight informed by the multi-agency oversight and need to use of limited resources efficiently and effectively in ensuring justice for administrative wrongs while acting as a catalyst in the transformation of public administration and governance. • Constantly leveraging the multi-agency oversight architecture to offload service requests, where appropriate, guided by the principles of: • Accessibility; • Integrity; and • Responsiveness, which includes promptitude and effective response to people’s needs and governance imperatives

  12. 2.3 6 KEY STATUTORY MANDATE AREAS • Maladministration Mandate under the public Protector Act 23 of 1994: Includes abuse or unjustifiable exercise of power, capricious, discourteous conduct, improper or unlawful enrichment or receipt of any advantage; acts and omissions that result in improper prejudice.(s6) Includes power to make findings (s8)

  13. OUR 6 KEY STATUTORY MANDATE AREAS (cont.) • Sole agency supporting the enforcement of the Executive Ethics Code in terms of the Executive Members’ Ethics Act 82 of 1998 • Anti-corruption mandate: Shared Enforcement of the Prevention and Combating of Corrupt Activities Act 12 of 2000 • Safe harbour for Whistle-blowers under the Protected Disclosures Act 26 of 2000 • Review decisions of the NHRBC in terms of Housing Protection Measures Act 95 of 1998 • Resolving access to information disputes until Information Regulator takes over: Promotion of Access to Information Act 2 of 2000

  14. 2.4 OTHER STATUTORY MANDATES Transversal investigative powers acknowledged in sector specific legislation, including the following: • Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; • National Energy Act 40 of 2004; • Special Investigation Units and Special Tribunals Act 74 of 1996; • National Environmental Management Act 108 of 1999; • Gauteng Petitions Act. Non-investigative functions conferred by legislation such as: • Public Finance Management Act 1 of 1999; • Lotteries Act 57 of 1997; • National archives and Record Service Act 43 of 1996; and • Electoral Commission Act 51 of 1996.

  15. 3. ROLE AND FUNCTIONS

  16. 3.1 WHAT IS OUR ROLE? • Higher Purpose Statement: • “A conscience of the state to act with integrity and fairness.”

  17. 3.2 WHAT IS OUR PROCESS? INTAKE TRIAGING NJ/ DECLINE/ REFER/ACCEPT CLOSING REPORT EARLY RESOLUTION (ADR) CUSTOMER SERVICE /REVIEW INVESTIGATE: SD/GGI (FORMAL} REPORT

  18. 3.3 GUIDING PRINCIPLES • Honouring constitutional injunction to be accessible to all persons and communities (s182(4)) while leveraging constitutional architecture of complementary oversight involving; • Internal and statutory oversight bodies in government (e.g. IPID, PCS, JIP, MO, TO, Municipal Ombuds, SIU Proclamations and Commissions of Inq.) • Oversight by fellow constitutional bodies • Parliamentary oversight (NB Petitions Committees) • Courts and Tribunals • Promoting trust in the system and using democracy avenues • Ensure accessibility: Outreach through regional offices, mobile offices, clinics, stakeholder engagements • In addition we leverage international partnerships to build capacity, benchmark and research trends

  19. 4. MANAGEMENT OF OVERLAPS

  20. 4.1 MANAGING OVERLAPS WITH OTHER ISCDs • Unavoidable Overlaps Though distinct, Public Protector’s Constitutional Mandate on investigating improper conduct, maladministration, corruption, ethical violations, abuse of power and abuse of state resources overlaps with that of all oversight bodies. • Current Framework for Managing Overlaps • MoUs with ISDs but also with statutory bodies such as the SIU and the Inspector-General: Intelligence; and parliamentary oversight bodies such as Petitions Committees (e.g. Gauteng) • Cooperation in form of the Good Governance Forum • Referrals of complaints to relevant institutions • Joint initiatives through the FISD Example of coordination of matter from NW SCOPA, which involved Public Protector, AG, PSC, Commercial Crime Unit and SAPS

  21. 5. STRUCTURE AND OPERATIONS

  22. 5.1 FIVE KEY STRATEGIC OBJECTIVES/OUR SERVICE PROMISE External/outward Inward looking

  23. 5.2 ORGANISATIONAL STRUCTURE (INVESTIGATIONS)

  24. 5.3 REPORTING OBLIGATIONS • Regulated by Section 181(5) of the Constitution and Section 8 of the Public Protector Act and Section 3 of the Executive Members’ Ethics Act, the Public Protector: • Reports to the Complainant and the institution on findings • Reports to implicated Parties or organs of States • Reports to the National Assembly and NCOP on request or as she/deems fit • Reports to the President on EMEA matters • Copies Members of the Executive and Committees of Legislatures at national and provincial levels and councils local level on reports, where she/he deems appropriate • Submits Annual and Periodic Performance Report to the National Assembly & Keeps parties abreast of investigations

  25. 6. OTHER MATTERS FOR PARLIAMENT’S ATTENTION

  26. 6.1 THEMES/TRENDS • Majority of 38 120 cases handled in 2013/14 were “bread and butter” issues e.g. ID; RDP housing; pensions etc. – less than 0.1% are cases that are subject of public/formal reports Recurring themes include: • Indifference; • Systemic service failure; • Non-compliance; • Corruption; • Overbilling; • Overcharging; • False billing; • Scope creep in state contracts or tenders; and • Unnecessary services e.g. legal services (R15m in one internal case)

  27. 6.2 OTHER MATTERS • Debunking Myths About Public Protector Case Load • Demonstrable Commitment to leveraging multi-agency oversight architecture, through MOUs and virtual non-investigation of cases in Prisons, Police, Military, Intelligence and Public Service • Strengthening Internal Complaints Mechanisms: Initiative on internal Ombudmanslike mechanisms e.g. Defence and COJ • Increase in case load in unchartered waters Reflecting growth in accessibility: Compare new and old annual reports.

  28. 6.2 OTHER MATTERS (contd) • Demonstrable commitment to systemic transformation to avoid recurrence: • UIF • SASSA • Some Municipalities (Dipaliseng, Nala, etc • Employment, Gross underesourcing of Public Protector • Funding increase lags far behind addition of new and onerous mandates and exponential increase in size and complexity of case load (EMEA, PDA, HPMA, etc.)

  29. 7. CONCLUSION

  30. 7.1 CLOSING REMARKS • Fragile and robust Constitution and democracy needs seamless state • NPD identifies cracks and points way forward that includes a strengthened Public Protector • NDP accepted by government without reservations • Overlaps unavoidable but manageable and can be reduced: NB not to start investigation when another structure is already investigating

  31. 7.1 CLOSING REMARKS (contd.) • Paradigm of power with rather than power over needed for a seamless integrity sector and broader oversight sector anchored in supremacy of the Constitution. • NDP consistent with Asmal Report on importance and distinctness of public protector. • Adequate resourcing a constitutional imperative under section 182(2) requiring Public Protector to be accessible to all persons and communities • Referrals to take into account powers and remedies ( Mrs MR’s case) • Political will and joining hands against maladministration and corruption important for ending impunity while ending impunity is essential for good governance and the rule of law.

  32. 7.2 CLOSING QUOTE “The concept of oversight contains many aspects which include political, administrative, financial, ethical, legal and strategic elements…to detect and prevent abuse, arbitrary behaviour or illegal and unconstitutional conduct on the part of the government and public agencies” National Assembly in: Oversight and accountability model: Asserting Parliament’s oversight role in enhancing democracy

  33. THANK YOU SIYABONGA; REA LEBOHA; NDO LIVHUWA; DANKIE 0800 11 20 40 www.publicprotector.org

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