Unisa online - Publicly engaging on the freedom of the Public Protector

Advocate Thuli Madonsela, Office of the Public Protector, addressing a Unisa audience

There has been a lot of dissatisfaction and disappointment on how tenders and job vacancies are awarded by the government and its sectors in South Africa. There have also been questions about whether the Office of the Public Protector is as free as it ought to be, specifically since its head is a political appointment. The assumption is that since the Public Protector is a political appointee, the investigations and decisions might be politically manoeuvred and might not eventually portray the truth.

Based on this, Unisa’s Department of Philosophy and Systematic Theology invited the Public Protector, Advocate Thuli Madonsela, to present a paper entitled "The freedom of the Public Protector from political parties' influence".

Speaking on 21 April 2011 in the ZK Matthews Hall, Advocate Madonsela said she was honoured to be at Unisa, especially in light of her background and interest in academia. "The academic community is important for arranging discourse that defines the space to be accorded to the Public Protector as an ombudsman institution in our democracy. An ongoing dialogue on the independence of my office and other institutions supporting democracy, from political and other influences, is critical for the sustainability, growth and maturity of our hard-won constitutional democracy. Such dialogue is also timely in view of the fact that issues of good governance and respect for the rule of law have come under sharp focus across the African continent."

Advocate Madonsela began her presentation by explaining the nature and constitutional mandate of the Public Protector. She said that the independence of the Public Protector is firmly entrenched in the constitution and legislative framework. The Public Protector, among other things, has the responsibility to investigate any conduct in state affairs, or 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.

From left: Prof Gundani (CoD: Christian Spirituality, Church History & Missiology), Dr Joseph Diescho (Director & Head: International Relations & Partnerships), Advocate Thuli Madonsela (South African Public Protector), Advocate Vusi Pikoli (Council for the Advancement of the South African Constitution), Mr Itumeleng Mothoagae (Lecturer: Department of New Testament), Dr Vic Webb (Centre for Research in the Politics of Language: UP) & Bongani Luvalo (South African Council of Churches' Youth Forum)

Addressing her presentation topic, she said that the freedom or independence of the Public Protector from political and other external influences is a non-negotiable constitutional guarantee. She then examined factors that are globally recognised as collective guarantors of the independence of the institution of an ombudsman. "The same factors obviously go a long way with regard to insulating the Public Protector from political parties or influence."

These include the following:

• A constitutionally entrenched position and tenure
• Institutional independence including resources
• Open and inclusive appointment processes
• Objective criteria and a transparent process of removal from office
• Parliamentary accountability as opposed to executive accountability
• Adequate power
• A working democracy based on respect for the rule of law
• Independent and effective courts
• Solidarity within a strong and functioning integrity sector
• Political will
• Media freedom
• Accessibility of services
• The accountability role of civil society

She said that if all these things are working well and in sync with legislative prescripts, the Public Protector will indeed be insulated from political influence or interference. "As things stand today, I have no reason to doubt that the Public Protector is shielded from undue influences. However, South Africans and even the Public Protector should not be complacent, but everyone should continue to be vigilant."

Also addressing the crowd was Advocate Vusi Pikoli who spoke on fighting corruption in South Africa, and the role and duty of each citizen in ensuring a corruption-free country.