CAROA 6th BIENNIAL CONFERENCEIntegrity the Foundation of Good Governance

MAKING INTEGRITY REAL CHALLENGES AND LESSONS OF EXPERIENCE

Wednesday, November 03 11, 2010PUBLIC 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 succeed in giving a voice to the

people while reconciling the state and citizens, trustworthiness is

paramount”• nceandOverlaps with Other Oversight

9. Lessons Learned

Outline of Presentation1. Public Protector’s Mandate2. Public Protector’s Key Mandate areas3. Other Mandate Areas for the Public Protector4. Mandate Implications for Integrity as the Foundation of Good

Governance5. Integrity and Good Governance Central to Corporate Performance

Framework6. How Does the Public Protector Get Involved7. The Public Protector is Part of a Broader Integrity Framework8. Making Integrity Real: A Few Case Studies From the Last 12 Months9. 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 ActThe 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

• 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 including-

• Completeness (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

A trusted, effective and accessible Public Protector that rights administrative wrongs and consistently acts with integrity to ensure fair, accountable and responsive decision-making, 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:

Vision

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

5. Integrity and Good Governance Central to Corporate Performance Framework:

Core Principles and ValuesAnchored 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 FrameworkCore Principles and Values (cont.)

• Accountability• Integrity• Responsiveness• Transparency and• Justice and Fairness

5. Integrity and Good Governance Central to Corporate Performance Framework:

Service PromiseThe Public Protector seeks to:1) Be trusted by and accessible to all persons and communities2) Provide Prompt Remedial Action3) 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 organization5) 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 Others1)Member of the Public/Organisation2)Members of Parliament;3)Public Protector;4)Organ of State/ Referral Body;Executive Members’ Ethics Act1)President/Premier2)Member of Parliament/Member of Provincial LegislatureOther 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 Offices3)Participate in any outreach activity e.g. Mobile Office, clinics, TV or radio programme4)Write to the Public Protector5) 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

• 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