Interview with SA’s New Public Protector : Public Protector to Ensure Improved Government Administration
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SA Communication Service
For the first time the duties of South Africa's Public Protector will be underpinned by a Charter of Fundamental Rights. Structures such as the Human Rights Commission, the Commission for Land Restitution and the Commission on Gender Issues are further mechanisms that should be mutually supportive to the Public Protector and which would help to make his task much easier than before. Mr Selby Baqwa, South Africa's new Public Protector, assumed office on 1 October this year. Marlene Kromberg interviewed Mr Baqwa, an advocate by profession, on, among other things, his role as "watchdog" on government spending of public funds; in investigations of allegations of public maladministration and the accessibility of the Public Protector's Office to the public.
Q: As South Africa's new Public Protector, you face the daunting task of investigating complaints against government agencies, officials and employees, and of being the "watchdog" on government spending of public funds. What are the terms of reference of your Office?
A: The terms of reference or competencies are outlined in the 1993 Constitution (section 112) and also in section 6(4) of the Public Protector Act of 1994, which state that my duty is, firstly, to investigate upon own initiative or, upon receipt of a complaint, any alleged maladministration in connection with the affairs of government at any level or any institution in which the State is the majority or controlling shareholder, or of any public entity as defined in the Reporting by Public Entities Act 1992 (Act 93 of 1992).
Secondly, I am authorised to investigate the abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function.
Thirdly, it is my duty to investigate improper or unlawful enrichment or receipt of any improper advantage or promise of such enrichment or advantage by a person as a result of an act or omission by a person performing a public function. Lastly, my duty would be to investigate any act or omission by a person performing a public function that will result in unlawful or improper prejudice to any other person. Broadly speaking, those are the parameters within which I will operate.
Q: In 1991, Parliament approved the conversion of the then Office of the Advocate-General to that of Ombudsman, a position which was held until recently by Mr Justice PJ van der Walt. The title varies from one country to another, but what is the difference between your title of Public Protector and that of Ombudsman, and in what way would your duties differ from those of Mr Justice van der Walt?
A: The difference between the two terms is only in the name itself. The functions of the two offices are exactly the same. The term Public Protector was first introduced in South Africa through the 1993 Constitution (Act 200 of 1993). The debate about the name has indeed not yet been laid to rest. It is still raging on in the Constitutional Assembly (CA). Some people feel that the term Ombudsman is foreign to South Africans - it derives from the Swedish word meaning representative - and that it does not convey any meaning to a South African. In practice, this may be true as letters to the erstwhile Ombudsman, Mr Justice van der Walt, would sometimes refer to him as the "omnibusman" or simply "Mr Budsman".
Some people also feel that the name Ombudsman is sexist in that it connotes an office occupied by a male person. This is not true, because the word MAN in the Swedish context does not connote sex or gender as such. The Deputy Ombudsman of the Netherlands, for instance, happens to be a woman. It is not really an issue in those countries, but it is an issue in South Africa and this is why the name Public Protector has been adopted.
Compared to the task of my predecessor my duties may be expanded in the sense that the Public Protector would now be operating in an environment in which human rights as specifically spelt out in the Charter of Fundamental Rights (Chapter III of the Constitution) will be very important and where the Government of National Unity (GNU) places specific emphasis on those rights. In that sense, I perceive my mandate to be broader and not because the office as such is different.
Q: Do your powers of investigation also apply in an "official versus official" situation and what mechanisms exist for the protection of a complainant against victimisation by other members of his or her own department?
A: Yes, improper conduct as described above applies also to an "official versus official" situation. Investigations by the Public protector are done on a confidential basis, but where the investigation is within a department it would be difficult not to disclose who the complainant is unless the complaint affects a number of officials within the department. In such situations the Public Protector would have to monitor the situation where the name of a complainant has been disclosed, even after the complaint has been resolved to ensure that the complainant is not victimised.
In the nature of things, given the status of the Public Protector, one would expect that such victimisation would occur in a minority rather than a majority of cases. However, I may add that your question does reflect reality. I am reliably informed that during the term of my predecessor, there have been such instances where after an official has complained, there has been some sort of victimisation which the Ombudsman had to attend to even after the complaint that was initially lodged, had been resolved. This could be ascribed to human nature, because people in authority do not like to be challenged if they can help it, and if they are so challenged they would like to get back at the person concerned in one way or another. Luckily we are aware of that unfortunate weakness in human nature and we have our eyes open. Most certainly people can feel confident that their interests would be looked after, even in an "official versus official" situation.
Q: Would steps be taken against an official in a position of authority who makes himself or herself guilty of victimisation?
A: Yes, without doubt, because it would mean that that person does not have the interest of good administration at heart. If, just because somebody has pointed out a shortcoming or an omission, the person concerned takes it personally, then he or she is not fit to be in that position. We would therefore certainly take a very dim view of such a person in authority who would view matters in that fashion and victimise a person just because he or she has complained.
Q: What procedure will be followed once the Public Protector has completed an investigation?
A: If, after completing an investigation, it appears to the Public Protector that the facts disclose the commission of a criminal offence, he or she may refer the matter directly to the police or to the Attorney-General for prosecution, or in the event of a financial impropriety as disclosed by the facts the matter may be referred to the Auditor-General, or alternatively, again to the Attorney-General. If the matter has been resolved successfully, for example, by the official concerned altering the decision complained about, the issue may not be taken any further.
The outcome is also communicated to the person(s) affected. The Public Protector, furthermore, submits to Parliament half-yearly reports on findings in respect of investigations of a serious nature. These reports are done on a selective basis, since not everything is important, regard being had to the importance of each matter to the public.
Q: How "public" would the duties and findings of the PP be?
A: The duties of the Public Protector are public knowledge inasmuch as they emanate from the Constitution and the Public Protector Act. The Public Protector shall also seek to publicise the existence and functions of the Office as much as is possible. As I have mentioned, the findings are communicated to Parliament in half-yearly reports and to the public at the Public Protector's discretion.
Q: Your interest in human rights is well known. In what way can the Office of the Public Protector be seen as an extension of the process of providing and protecting human rights?
A: Traditionally, human rights as accepted internationally have not been a matter over which the Public Protector has been seen to have jurisdiction. In the classical sense his or her jurisdiction was concentrated mainly on the investigation of maladministration and making recommendations regarding complaints against state institutions.
However, the Public Protector is increasingly regarded as an instrument that is suitable for the protection of certain basic human rights, since he or she is more accessible to the individual. He or she can be approached informally without any complicated procedures or processes. His or her services are available at no cost to the complainant. The sense of impotence or powerlessness and frustration which an individual experiences when his or her rights have been infringed and when he or she is forced to face the might of administrative bureaucracy, has now been eliminated.
It must, however, be stated that in fulfilling this function, the Public Protector would work in co-operation with the Human Rights Commission (HRC), which is soon to be appointed. The two institutions complement each other in that the Public Protector protects the individual against vertical violation of human rights whereas the HRC in the main protects persons against horizontal violation of human rights. Vertical violation means violation by the State as opposed to the HRC investigating horizontal violations by individual versus individual. This adds a new dimension to my functions as opposed to that of my predecessor who did not have at his disposal the extra instrument of the HRC. At the time, human rights were prominent more because of their violation. Also, there was no Charter of Fundamental Rights in existence in which these rights were spelt out, as they are now in the Constitution. In fact, as was stated by Mr Justice T Madala, a judge of the Constitutional Court, during a recent seminar held in Parliament, human rights were so violated in some instances that some people who did not know better, actually believed that the authorities had a right to violate human rights.
Q: The Public Protector has been given extraordinary powers of access, subpoena and seizure without hindrance, even from the President. Does this not make for unprecedented authority that could turn out to be an inhibiting factor for parties under investigation?
A: Indeed the Public Protector does possess such extensive powers. However, one would expect that the prestige and the power of persuasion of his or her Office would encourage persons concerned to co-operate and that the extensive powers would only be used in exceptional circumstances against recalcitrant officials. One would expect that such powers would induce co-operation rather than be an inhibiting factor.
I feel comfortable with these powers not because I am looking forward to using them, but in the knowledge that when I do find such recalcitrance, I would be able to deal with it instead of throwing my hands up in the air and not being effective. In other words, these powers exist to ensure the public that the Public Protector has the necessary muscle to deal with whoever is at fault. One is always aware of the potential of the closing of ranks, for instance in the Public Service. It is a bureaucracy whose members might, for obvious reasons, seek to protect one another. If there were such a closing of ranks, one would need to have powers to handle the problem. I do not presume that that will be the case, I would rather presume co-operation from everybody concerned.
Q: The Office of the Public Protector has been effectively removed from the control of the Executive, giving it greater independence in cases of conflict with the government. Does this situation conform with similar appointments in other countries where there is a public protector system in force?
A: Yes, being removed from the control of the Executive does give the Office greater independence. This situation is similar to that in the Scandinavian countries such as Sweden and Denmark. One can safely say that most of the countries that have established a public protector system have ensured that it is independent of the Executive to guarantee its ability to deal with maladministration in government in an unfettered manner.
The Public Protector in South Africa is nominated and selected by a committee comprising representatives of all political parties in Parliament. The final nominations is done in a joint sitting of both Houses of Parliament. He or she is responsible to, and reports directly to Parliament. The position in which the Public Protector is put by this process is such that his or her independence of any influences, be it of the Government or any political party, is ensured.
Q: Would the Public Protector form a link between the Legislature and the Executive in order for the Legislature to keep track of theunds (sic)?
A: The Public Protector is a creature of Parliament. However, the Office cannot be seen as a link between the Legislature and the Executive in order to keep tabs on the Executive's spending of public funds. One could say rather that such a link is to be found in the Office of the Auditor-General.
In practice, where in the normal course of his or her duties, the Public Protector comes across evidence of improper or unlawful spending of public funds, he or she is at liberty to refer the matter to the Auditor-General or to the Attorney-General. That kind of link lies with the office of the Auditor-General. The Office of the Public Protector is just one of the mechanisms for keeping a watchful eye but it is not the link.
Q: In view of the recent spate of accusations regarding the misappropriation of state funds, it seems likely that your Office will be very busy. Is there an assistant Public Protector and how big is your personnel?
A: Misappropriation of state funds in the modern industrial state has unfortunately seemed to grow in tandem with the growth of the population and the simultaneous growth of administrative bureaucracy. This aspect of government administration is expected to keep this Office busy.
The Public Protector Act entitles me at my discretion to assistance by one or more Deputy Public Protectors. At the moment no deputy has been appointed, but one will probably be appointed in due course. At present, the staff complement in the Office totals eight posts and this number should increase so as to meet the growing volume of work and increased demand from the public.
According to statistics of this Office, complaints regarding misappropriation of government funds during the term of my predecessor formed about 1,4 per cent of the work that came in, but this does not necessarily reflect the real situation. Maybe this fact emphasises another point, namely a lack of awareness of the public, including people both in the outside government, of the need to bring to the attention of this Office all instances of misappropriation. The extent of such contravention has certainly not been limited to 1,4 per cent.
Q: One of the contenders for your post has stated that the Office is not a "spying institution, but an Office to improve government administration". Do you agree and if so, how can the Office assist with such improvement, other than investigating and exposing improper conduct and mishandling of public funds?
A: I agree that it is not a spying institution. As I have mentioned the duty of the Public Protector is to investigate upon receiving complaints, and on his or her own initiative, maladministration at any level of government. After investigation he or she has to make recommendations regarding complaints of aggrieved persons against state institutions, administrative bodies, officials and employees about unreasonable, unfair and discourteous administrative action.
Through mediation, conciliation and even negotiation, the Public Protector is expected to bring about a settlement between a complainant and the administration, or to bring about the relocation of an official decision or even bring about a change in policy. One would hope that this would lead to an improvement in government administration. The Public Protector's role is, whilst solving problems insofar as he or she can, to ensure improved government administration.
People both inside and outside the Government should view this Office as being potentially beneficial to them. If, for instance, there is a complaint against the Government, and the Government appoints an internal investigating official, but at the end of it all that official comes out with a finding exonerating the Government, it would be termed a cover-up, because one cannot be judge in one's own cause. If, for argument's sake, the Public Protector finds that there is no substance in the complaint, it can never be termed a cover-up, because the Public Protector has absolutely nothing to gain from such a conclusion.
Whereas the Office is constantly portrayed as a protector of the individual - and you might look at the individual as the person in the street - it is at the same time beneficial to both sides, namely government administration and the populace at large. I would like the public to regard this office as a referee and not a player.
Q: The 1993 Constitution grants concurrent jurisdiction between the national Public Protector and the provincial protectors. Could you venture an opinion on how the final Constitution would define the roles of the two offices and how prescriptive would the national Protector be to the provinces?
A: Whilst the Constitution may appear to grant concurrent jurisdiction between the Office of the Public Protector and that of the provincial public protectors, section 12(I) of the Public Protector Act of 1994 in that it enjoins the national Public Protector, after consultation with the provincial public protectors, to publish a notice in the Government Gazette setting out general guidelines in accordance with which a provincial public protector shall exercise and perform his or her powers and functions.
In this sense therefore the national at (sic Act?) can be described as coordinating and supervisory, even though he or she performs the role in consultation with the provincial public protectors. There may be a departure from this arrangement in the final Constitution where the national Public Protector might be expected to open offices or branches in the provinces as opposed to having quasi-independent public protector's offices in the provinces. Whether this will be so, however, is still a matter for speculation, but whatever the outcome it will be essential for the various offices of the Public Protector, whether in the present form or maybe in the form that I postulate, to act in co-operation with one another in order to maintain and enjoy the confidence of the public. This is essential for the effective operation of this Office; moreover this would enable the Office to be an effective catalyst in bringing about change for the better in government administration.
The provinces are allowed to appoint provincial protectors in consultation with the national Public Protector. Provincial offices are, however, not yet in operation, but most of the provinces already have legislation in place. I can only assume that, since I was only appointed recently, they must have been waiting for the national structure to be put in place so that the proper legislation in the provinces could commence. In one or two instances I have already been approached to make comments about prospective appointments.
Q: Is the public sufficiently informed about the functions of the Public Protector, which cover all three tiers of government, and do you perhaps see a communication drive to foster an awareness in this regard?
A: The public is certainly not sufficiently informed about these functions and, even though the Office has been in operation in Pretoria for years now, many people are not aware of its existence. We have started a communication drive on radio, television and the print media to foster an awareness in this regard, but at the moment there is not yet a structured publicity campaign. Such a structured campaign will commence shortly with a view particularly to reaching all institutions such as schools, technikons, universities, churches, non-governmental organisations (NGOs), government departments and people in the rural areas who for most of the time are locked out of the mainstream communications in the country. We intend taking the concept of the Public Protector to the people, both on an informative and educative basis.
Q: You were involved in the Browde Commission of Inquiry into Public Service Irregularities in the former homelands. Has this experience helped you to formulate a specific approach to follow in your new position?
A: As stated above, my brief is to investigate maladministration at any level of government. The Browde Commission was appointed to investigate corrupt practices and irregularities that occurred during the period from April 1993 to September 1994, where they may have occurred in the former homelands and the former Republic of South Africa. Needless to say this had given me invaluable experience both in terms of knowledge about how much can go wrong in government administration as well as how such maladministration can be rectified.
The commission's inquiry has been educative insofar as it has indicated to me where the screws need to be tightened to improve efficiency in public administration. The approach that is adopted by the Browde Commission is, however, a more formalistic one, but for obvious reasons this is so in order to bring matters to a speedy conclusion. As Public Protector I would not necessarily be that formalistic, because if one adopts a quasi-judicial approach such as the one used by the commission now, it does tend to have confrontational aspects. In fact, I may say that in some of the areas in which the commission has been working, it has operated under fairly tense situations.
However, that is not the only way to approach a situation. I am given the flexibility in the Public Protector's Office to use an informal approach in solving similar problems. With such an approach one tends to enjoy greater co-operation and reduce tensions that may exist. In the final instance, one tends to have more winners than losers or a situation where everybody is a winner. Therefore, whilst I would regard the experience and information I have gleaned during my term as a member of the Browde Commission very educative and useful, my approach would not necessarily be as formalistic.
Q: How do you view your new position as South Africa's Public Protector?
A: It is a challenge, a daunting one, but also an exciting one. I have been given an opportunity and the powers to make a difference in South Africa regarding public administration. I find support, however, in the fact that the Office has been expanded - it has a presence in every province and that solves the problem of inaccessibility. I find further support in the fact that the Bill of Rights is contained in the Constitution and that the population now has a document which is public. People do not need to be told by the Public Protector that they have rights.
The job is also being made easier by the setting up of other structures such as the HRC, the Commission for Land Restitution and the Commission on Gender Issues. These are all mechanisms that should be mutually supportive and as such should make the task of the Public Protector easier. Great trust has been put in me by the South African electorate via their representatives in Parliament. I will not let them down and I will do my best to be equal to the job.
Note to Editors: Interview with SA's new Public Protector, Mr Selby Baqwa, appears in the October edition of RSA Review, a monthly publication of the SA Communication Service, Further enquiries: Marlene Kromberg, tel (012) 314-2238.
With acknowledgement to SA Communication Services.