Friend of the public

2011-07-12 00:00

THE controversy over the rumoured imminent arrest of the public protector, Advocate Thuli Madonsela, and revelations of investigations into her business activities before being nominated into her current positio­n call for a reflection on the role of this public office and why the controversy harms our democrac­y.

The public protector is a public office set up by initiative and law of Parliament to represent the interests of the citizens or the public against possible abuse by the state and other powerful organisations. This is made necessary by the fact that governments occasionally trample on citizens' rights to protection and empowerment.

The propensity of the state to hurt public interests in the business of governing means that where political parties and independent organisations are unable to offer help to violated citizens, the public protector can investigate misdemeanours and recommend corrective measures. For this reason, the public protector is important for ensuring that the people retain some power to hold public officials to account for their actions. It is a platform for asserting public sovereignty in a democracy.

It is healthy in a social democracy such as ours for members of the public to enjoy the right of protection from abuse perpetrated by their own state when this happens.

The creation of this office in 1995 was a major victory for liberation movements which had proposed a number of independent oversight institutions during political negotiations with the apartheid regime in the early nineties. Chapter 9 of the Constitution empowers the public protector to investigate any conduct of state affairs or in the public administration that is deemed improper or may result in impropriety. For this reason, the Constitution provides that the office must be accessible to the public and communities for them to make their complaints with ease.

The office has been held by two senior advocates before, Selby Baqwa from 1995 to 2002, followed by Lawrence Mushwana between 2002 and 2008. Baqwa's major challenges were to establish the office and to establish its credibility where opportunities presented themselves. He did well in regard to the former. He also took up many complaints and censured state entities that he found to have acted improperly. But he will be remembered for canning the arms-deal probe in 2001 under a cloud of controversy. He declined renomination when his term ended the following year.

Mushwana, who now chairs the Human Rights Commission, did not distinguish the office that much. Under his leadership, the office kept a low profile and its provincial offices were criticised for lack of profile and accessibility.

The office was found wanting at a time when evels of social discontent were very high, when corruption in government was escalating and when incompetence was on the rise. Its Eastern Cape office came under sharp criticism for failing to become a platform for citizens to use to protect themselves from the consequences of corruption and incompetence in provincial and municipal governments. He was generally perceived to have failed to act without fear and prejudice.

So, when Mushwana left his position with a golden handshake estimated at R7 million, there was hope that his replacement would lift this office from obscurity and lack of distinction.

Madonsela, the former law-reform commissioner who took over in 2009, immediately injected energy and dynamism into the office. Suddenly, it had a public profile. There was an attempt to reinvigorate its contract with the public to be an independent and non-partisan protector of public interests.

She made visible efforts to improve the office's accountability, holding many public engagements to explain her work and going on radio to invite the public to approach the office with complaints. Of course, it is the investigation of the office leases by the South African Police Force that have attracted the most media attention, but under her leadership the office has investigated a large number of smaller cases involving lower levels of government and ordinary people.

In the process, she should have done more to build relations with organs of state to ensure that they willingly implement her rulings rather than seeing them as prejudiced. It is still too early in her seven-year tenure though.

Attempts to intimidate her by some in the police and through rumours in the media should be regarded as anti-democratic. They undermine this one important office that defends the rights and freedoms of South Africans. Citizens and their organisations should rally behind the office and leave it to law bodies to resolve legal matters.

The office is too important to be sacrificed at the altar of political expediency. Corruption undermines the rights of citizens to the best possible service provision. It is our enemy.

The protector is the friend of the public.

• Siphamandla Zondi is the executive director of the Institute for Global Dialogue.

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