Transcript Public Protector striving to make fulfilment of human rights a reality

Overview of Public Protector’s
role in the promotion and protection
of human rights
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INTRODUCTION
The Public Protector strives to make constitutional democracy and the fulfilment
of human rights a reality to South Africans from all levels through the
improvement of national governance
Human rights are more than the proclamation of splendid international instruments and indulgence in
fine rhetoric. Good governance and institutional reform within each nation are vital to the effective
delivery of human rights.
The Hon Justice Michael Kirby AC CMG
Governance is the process whereby public institutions can conduct public affairs, manage public
resources and guarantee the realisation of human rights. The true test of "good" governance is the
degree to which it delivers on the promise of human rights
United Nations High Commissioner for Human Rights, 2002
Recall the face of the poorest and weakest man whom you have seen, and ask yourself if the step you
contemplate is going to be of any use to him… Will it restore him a control over his own life and
destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions? Then, you
will find your doubts and your self-melting away.
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Mohandas
K. Gandhi
International Human Rights standards
One of principal purposes of the UN is the promotion and
protection of human rights.
It has set up “complex machinery” under various
international covenants and conventions to establish
standards, monitor implementation promote compliance
and investigate violations of human rights
The international systems rely heavily on the support from
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regional human rights systems supported by Governments
and concerned NGO’s
Each of these groups has a special role in the development
of a universal culture of human rights and making such a
culture a practical reality in the lives of ordinary citizens.
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Establishment of National Human rights
instruments
When states ratify human rights instruments the universal
human rights standards and norms find their expression in
the domestic laws of the countries.
However, the existence of laws is not enough if provision is
not made for the necessary legal powers and institutions to
ensure their effective realisation :
“It has therefore become increasingly apparent that the effective
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infrastructures for their protection and promotion.
(Fact Sheet No.19, National Institutions for the Promotion and Protection of Human Rights)
Majority of existing National instruments are Human Rights
Commissioners and ombudsmen
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The role of Human Rights Commissions and
Ombudsmen in the protection and promotion of Human
rights
HRC’s primarily concerned with protection of nationals
against discrimination and with the protection of civil and
other human rights:
•
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Receives and investigate complaints and allegations of human
rights abuses committed in violation of existing national laws,
and
Review the Government’s human rights policy in order to detect
shortcomings
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Ombudsmen protect the rights of individuals who are the
victims of improper and unjust acts on the part of state
administration. Often acts as mediator between aggrieved
individual and public institutions. Primary function to ensure
fairness and legality in public administration.
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The significance of establishing human right
instruments in South Africa
When formal apartheid ended in 1994, the newly elected
democratic government undertook to redress past
inequalities, inequities, injustices and oppression, amid high
hopes and expectations from the public about the tangible
benefits democracy would bring.
A constitutional order based on the rule of law and the
principle of the separation of powers and functions in the state
and in government, with a human rights orientation, play a
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democracy
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Recognising that the task of promoting and protecting human
rights cannot be left to the government or to the individual, it
was agreed that institutions must be established that would
advance democratic governance.
The South African Constitution, which is considered one of the
most progressive in the world, enshrines in Chapter 9 state
institutions to protect constitutional democracy, each of them
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with a specific mandate, including the Public Protector and the
Public Protector’s Constitutional Mandate
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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
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Vision
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
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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.
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Core Principles and Values
Anchored 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:
•Independence and Impartiality
•Human Dignity
•Equality;
•Ubuntu;
•Redress;
•Accountability;
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Core Principles and Values (cont.)
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Integrity;
Responsiveness;
Transparency; and
Justice and Fairness
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Mandate Implications of the promotion of human rights
as the foundation of Good Governance
•
Public Protector’s relationship with the
promotion and protection of human rights has a
number of dimensions:
– Reinforcing a strong tradition of civil society
– Establishing respect of human rights
– Important contributor to the maintenance of
the rule of law
– Part of the broader oversight framework of
constitutional obligations, policy, legislation
and administrative practices in the public
administration
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Giving the people of South Africa a voice
Complaints of maladministration and human rights questions that
arise daily, are of great consequences to many South Africans.
Their quality of life and enjoyment of citizenship can hinge quite
directly on how effectively these questions are resolved.
The PP has an important role in remedying government’s
administrative injustices or failures and reconciling the people with
the state.
People know and appreciate they have a protected right to
complain against public institutions. “the right to complain, when
securely embedded, is surely one of the most significant human
rights activities that we can strive for”(Michelle Falardus-Ramsay
– Canadian Human Rights Commissioner)
PP deals with rights problems in all areas of government by
means of complaint handling, own motion, and systemic
investigations, as well as interaction with government agencies.
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Giving the people of South Africa a voice (cont’d)
While protection of individual rights are paramount, it is
acknowledged that real rights protection for the community
comes where there is systemic change. This is a role that an
ombudsman institution such as the PP can undertake more
effectively than the courts.
Another technique for ensuring systemic change is own
motion enquiries and reports.
A great advantage that the PP has over courts and
parliament is that she can follow up on complaints and
report findings in a proactive manner and not merely
reactive.
The regular dialogue with the state can stimulate cultural
change within government
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Case studies
1. Individuals and communities from ten villages in Limpopo Province
affected by the construction of the Nandoni Dam near
Thohoyandou. The complaints primarily related to
inadequate or lack of compensation for loss of the right to access
to arable land, secure access to the river, compensation for
domestic fruit trees, commercial fruit orchards or farms, relocation
of graves, traditional medicinal plants, poorly constructed access
roads, water supply, dam safety and other related matters
Undue delays by the Department of Home Affairs in connection with
the processing of applications for identity documents
ICD fails to investigate allegations of police brutality
(Current matter) Access to medical assistance for HIV positive
mother and child
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2.
3.
4.
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Feeling the change at “grass roots level”
The PP has become increasingly streamlined in the past
years in its operations and establishing a presence in all the
provinces.
The PP, Adv Madonsela has since her appointment been
vigorously reaching out to all communities and individuals to
explain her function and the concept and practice of human
rights and good governance.
The PP has also been very active in the field of good
governance and human rights education with the staging of
sensitization seminars, workshops, and functions:
“No administrative wrong will go undetected and not
remedied under our watch”
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Case Initiation
Who may initiate a case?
A case may be initiated by any of the following:
Public Protector Act and others
1)Member of the Public/Organisation
2)Members of Parliament;
3)Public Protector;
4)Organ of State/ Referral Body;
Executive Members’ Ethics Act
1)President/Premier
2)Member of Parliament/Member of Provincial Legislature
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How do you initiate a case?
A complaint may be lodged through any of the following:
1)
Cal Toll-free line: 0800 11 20 40;
2)
Visit any of the Public Protector. 19 exist across the
country divided into :
•
National Office
•
9 Provincial Offices
•
9 Regional Offices
3)
Participate in any outreach activity eg. Mobile office,
clinics, TV or radio programmes
4)
Write to the Public Protector
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How do you initiate a case? (cont.)
5) Complete a form on the website:
www.publicprotector.org
6) Send an email to [email protected]
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Thank You
0800 11 20 40
www.publicprotector.org
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