JOINT COMMITTEE ON ETHICS AND MEMBER’INTERESTS’ SEMINAR ON ETHICS

The Role of The Public Protector in Relations to Ethical Misconduct in Public Institutions

Wednesday 05 June 2013Presented by

Public Protector Adv. Thuli Madonsela

SCOPE OF PRESENTATION• INTRODUCTION• WHAT IS ETHICAL CONDUCT?• EXAMPLE OF ETHICAL MISCONDUCT• PUBLIC PROTECTOR’S POWERS ON ETHICAL

MISCONDUCT • HOW DO WE DETERMINE ETHICAL

MISCONDUCT?• CASE STUDIES• CONCLUSION

INTRODUCTION• SINCERE GRATITUDE FOR THE OPPORTUNITY

AND RECOGNITION• APPLAUD THE INITIATIVE WHICH WILL

CONTRIBUTE TO A COMMON VISION ON ETHICS ENFORCEMENT AND STRENGTHENING OF SYNERGIES IN THE INTEGRITY SECTOR

• SIMILAR VISION INFORMS GOOD GOVERNANCE WEEK AND PROPOSED DIALOGUE ON INTEGRITY ENFORCEMENT AND PROMOTION

• ELEPHANT IN THE ROOM: UNCONDITIONAL APOLOGY

WHAT IS ETHICAL CONDUCT?

• “In the public sector, ethics seek to address the fundamental issues relating to the civil servants’ duty to act as a “steward” for the public. In my mind, "stewardship" thus conceived refers to the core values which should guide the judgment of public servants in the performance of their daily tasks and in their relations with the public. Most importantly, ethical considerations provide the standards of accountability that can be used to scrutinize the work of civil servants.” – European Ombudsman, P. Nikiforos Diamandouros

WHAT IS ETHICAL CONDUCT?

BUT WHAT IS INTEGRITY?

In Gender Management and Leadership, I assert that its difficult to define integrity but when we see it we can all recognise it. I refer to the character of Albertina Sisulu.

But can we all agree when integrity is missing? That’s the challenge we face when we investigate.

WHAT IS ETHICAL CONDUCT?

• Character of the State provisions in the Constitution provide some answers

• Preamble- Vision of society= improved quality of life for all people with freed potential for all

• Section 96 sets out minimum ethical standards for the Executive

• Section 195 sets out Principles of Public Administration• Section 237 requires priority and diligence for

constitutional obligations• Chapter 3 sets out principles of cooperative

governance

EXAMPLE OF ETHICAL MISCONDUCT

• In September 2012, a California Congress Woman, Laura Richardson, was named by Citizens for Responsibility and Ethics in Washington, a government watchdog group also known as CREW, in its annual list of “most corrupt members of congress”. A month earlier, the US House of Representatives had voted to punish Ms Richardson for ethical misconduct after the House Ethics Committee found that she had illegally made her congressional staff work on her re-election campaign at taxpayers’ expense and tried to block investigations into the matter. Ms Richardson accepted responsibility and agreed to pay a US$10 000 fine out of her own pocket, saying her acceptance of the punishment was “in the very best interests of [her] constituents and of the house.”

PUBLIC PROTECTOR’S POWERS ON ETHICAL MISCONDUCT

• Constitution : Sections 181 the Constitution establishes the Public Protector to strengthen democracy through exercising his or her powers under section 182: “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 Act 23 of 1994: Gives the Public Protector power to investigate and redress maladministration or improper or prejudicial conduct, including abuse of power and abuse of state resources in all state affairs; resolving administrative disputes or rectifying any act or omission in administrative conduct through meditation, conciliation or negotiation; and advising on appropriate remedies or employing any other expedient means and reporting.

• Other laws with ethical Implications include the PCCAA, PDA, PAIA , HPMA, PEPUDA and others.

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PUBLIC PROTECTOR’S POWERS ON ETHICAL MISCONDUCT

• Under the Executive Members’ Ethics Act, the Public Protector is the sole agency with the power to held the president enforce the executive Members’ Ethics Act.

• Section 3 of the EMEA states that- “ The Public Protector must investigate any alleged

breach of the Code of Ethics on receipt of a complaint- PP to report to the President in 30 days or notify

President of inability to report in 30 days- Only MPs, President, Premier and MPL’s may initiate

investigation. No own initiative or discretion for the Public Protector. Only written complaints allowed.

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HOW DO WE DETERMINE ETHICAL MISCONDUCT?

• The Case of Nonto-Family budget and family feast.• In the US not only is there a transversal statement on

ethical conduct, in some states all public employees are required to undergo an ethics course within 6 months of employment and every 2 years thereafter.

• Ethical misconduct involves acts or omissions culm initiating in what is regarded as right or wrong or constitutionally speaking, proper or improper.

• We have the power to initiate an investigation instead of waiting for a complaint to be lodged however, we rarely use this for high profile matters in favour of cases involving ordinary people, who are unlikely to know where to get help

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CASE STUDIES

UNDER THE PPA AND RELATED LAWS• Ethical lapses as a continuum. From bad

personal Judgement to breaking the rules. E.g. lapses before investigations, during an investigation and after an investigation. E.g.Free Money for All and Against the Rules

• Types of Ethical lapses: From minor infractions/lapses in judgement to corruption. Need for common ground. E.g. Free Money for All.

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CASE STUDIES cont.

SERVICE FAILURE IS A TYPE OF ETHICAL LAPSE. SEE EEC and Chapter 10 of the Constitution. In the US Code this is clearly articulated. PPA anticipates: See Elaborate list. Not all service failure is unethical.

• CASE STUDIES INCLUDE:• Medical malpractice ( Bara mortuary matter and Toddler's

legs) and Rape Victim’s case. We are now called upon to deal with Vietnamese matter

• Governance lapses, include office bearers interfering in admin• Ethical Standards determined from laws, transversal codes of

conduct and internal codes of conduct• Many Ethical lapses involve abuse of power, abuse of state

resources and conflict of interest• Need for a transversal code of conduct.

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CASE STUDIES cont.

EMEA: THE MAIN ETHICS FRAMEWORK• Latest include: The Ethics of Staying in Comfort,

Costly Moves: How much is too much? Who draws the line and when. Is the handbook adequate? Review of Handbook recommended.

• Previous cases include: Diamonds gift, Political Party Investment Company Panel, various Municipal cases

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CASE STUDIES cont.

• Chris Hani Baragwanath Hospital: I investigated a complaint wherein it was alleged that the Chris Hani Baragwanath Hospital in Johannesburg had failed and refused to disclose to family members the cause of death of their loved one, Mr N. Sixty-one-year-old Mr N. had been admitted to hospital for a minor operation. He passed away a day after the operation. Nursing staff at the hospital contacted the family to inform them about the death of their loved one but did not explain what actually happened to Mr N. during the operation and the actual cause of his death. When Mr N’s son went to the hospital to inspect the body, he discovered that his father’s left leg had been amputated and also noticed a gaping hole on his stomach. The family had not been forewarned about the seriousness of the operation and the condition of the corpse. They were shocked and traumatised by the gruesome discovery as Mr N. had only been admitted for a minor operation. Our investigation found that even though Mr N. had been admitted for a minor operation, he developed complications that justified further surgical interventions. However, the hospital failed to inform the family about the cause of death or didn’t offer any form of counselling. As a result the family was exposed to a traumatic experience of seeing the deceased’s body in the condition it was. We also found that the hospital had failed to offer an explanation or apologise to the family until they were approached by the media. We were of the view that the hospital had an obligation to communicate with the family soon after the death and provide them with a full explanation on what happened.

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CONCLUSION

• Need for common vision and approach to content of ethics. “Free Money for All” among many sources of concern.

• Approach and coordination of processes• End impunity• Whistle-blower protection• Good governance initiative endeavours to strengthen

synergies. Includes National Good Governance Framework/ Charter incorporating ethical provisions

• We must become the change we wish to see in the world: E.g. Hotels, cars, Team Building costs at the Public Protector SA

• Training in Ethics: Purpose driven organisation initiative

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HOW TO APPROACH US

• Any of the Public Protector’s 20 walk-in offices nationwide can be used

• Our website, www.publicprotector.org is also an important tool in this regard

• Prospective complainants can also send us an email on Registration2@pprotect.org

• We also have a toll-free line, which will soon have a call centre: 0800 11 20 40

• Members of the public may make use of our outreach activities, including clinics, commemoration of national days or our the Stakeholder Dialogues and the Good Governance Week activities to register complaints with us

• Most recently, we are also making use of social networks such as Twitter and Facebook to be accessible to all persons and communities as required by Section 182 (4) of the Constitution

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CONCLUSION

THANK YOU!

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