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Published: 16 Oct 2012
|SA: Andries Nel: Address by the Deputy Minister of Justice and Constitutional Development, at the Conference on Responsive Service Delivery Through Ethical Governance hosted by the Office of the Public Protector, University of South Africa (15/10/2012)|
I have been requested to deliver a message of support to this important conference being held under the theme, “Responsive Service Delivery Through Ethical Governance.”
I would like history to do some of my work for me.
One of the decisions that we made as a nation at the dawn of our democracy, during the Multi-Party Negotiating Process in 1993, was to accept a package of thirty-four Constitutional Principles with which the transitional Constitution and all subsequent Constitutions would have to comply.
Constitutional principle XXIX provides for the independence and impartiality of a Public Service Commission, a Reserve Bank, an Auditor-General and a Public Protector which shall be safeguarded by the Constitution in the interests of the maintenance of effective public finance and administration and a high standard of professional ethics in the public service.
In the same year the African National Congress had proposed, in a document titled, Building a United Nation: ANC Policy Proposals for the Final Constitution, that, "The Constitution shall as far as possible empower the poor and the vulnerable to enforce their rights and shall inter alia create a Human Rights Commission and a Public Protector to perform this function."
Prior to that, in 1992 already, the ANC had said in its document, Ready to Govern, that: "The ANC proposes that a full-time independent office of the Ombud should be created, with wide powers to investigate complaints against members of the public service and other holders of public office and to investigate allegations of corruption, abuse of their powers, rudeness and maladministration. The Ombud shall have power to provide adequate remedies. He shall be appointed by and answerable to parliament."
Former President Nelson Mandela explained the thinking behind the creation of the Public Protector to the Africa Regional Workshop of the International Ombudsman Institution in 1996, as follows:
"We were mindful from the very start of the importance of accountability to democracy. Our experience had made us acutely aware of the possible dangers of a government that is neither transparent nor accountable. To this end our Constitution contains several mechanisms to ensure that government will not be part of the problem; but part of the solution.
Public awareness and participation in maintaining efficiency in government within the context of human rights are vital to making a reality of democracy. Many South Africans can still recall a time when the face of the Public Service was hostile, and a complaint could lead to victimisation or harassment; when access to justice seemed an unrealistic dream. In the new South Africa the face of the Public Service is changing radically.
However, we are not yet out of the woods; much still needs to be done in terms of transformation. In this sense, therefore, our Public Protector's Office is not only a critical instrument for good governance. It also occupies a central place in the transformation of the public service by, among other means, rooting out the arrogance, secrecy and corruption so rampant during the apartheid years."
The importance of the Public Protector was also appreciated by the judicial arm of our democratic State when, in declining to certify the draft text of the Interim Constitution, the Constitutional Court, in its First Certification Judgment, remarked that:
“The independence and impartiality of the Public Protector will be vital to ensuring effective, accountable and responsible government. The Office inherently entails investigation of sensitive and potentially embarrassing affairs of government. It is our view that the provisions governing removal of the Public Protector from office do not meet the standard demanded by Constitutional Principle XXIX.”
These provisions were, of course, subsequently amended and accepted by the Constitutional Court in its final certification judgment.
The extent of amnesia regarding this history on the part of many is surprising, to say the least.
We created these institutions exactly because we knew that the realisation of objectives such as the five nation priorities articulated by President Zuma: Education, Health, Job Creation, Rural Development and Fighting Crime and Corruption as well as our National Development Plan 2030 will be so much more difficult to achieve if there are corrupt staff and administrators in our hospitals and clinics who steal medicine and grant tenders to charlatans who fail to deliver or who bleed the scare resources of the state by overcharging for basic items through tenders that were awarded through corrupt means.
We will struggle to achieve the improved education that our nation needs if there are teachers and administrators who corrupt the process of purchasing stationery and textbooks and literally take bread out of the mouths of schools children by eating money intended for school feeding programmes.
Our National Development Plan 2030 makes the important point that, “Political will is essential to combat this scourge. Political will is measured by assessing the amount of money spent fighting corruption, the legal arsenal that corruption-busting institutions have at their disposal, the independence of anti-corruption authorities from political interference and the consistency with which the law is applied.”
It is a significant measure of our political will to combat corruption that:
The budget of the SAHRC increased by 66.23% over the past five years from R60.6 million for the 2008/9 financial year to R100.73 million for the 2012/3 financial year. This represents an average increase of 13.25%.
Funding for the Public Protector has increase by 95.02% over the past five years, from R86.5 million for 2008/9 to a very substantial, yet arguably still inadequate, R173.77 million for the current financial year. This represents an annual increase of 19% per annum.
The Special Investigating Unit, at the forefront of our fight against corruption, has seen its budget increase by on average 32.84% per annum over the past five years rising from R116.3 million in 2008/9 to a massive R307.31 million for the current financial year. Over the past three years President Zuma has issued an unprecedented 33 presidential proclamations authorising the SIU to investigate state institutions at national, provincial and local level.
There is indeed a formidable arsenal of legislation that corruption-busting institutions have at their disposal and our institution enjoy protection, respect and independence.
However, having said this, I must also add in the often incorrectly quote words of Amilcar Cabral that we must, “Hide nothing from the masses of our people. Tell no lies. Expose lies whenever they are told. Mask no difficulties, mistakes, failures. Claim no easy victories . . .”
We must say therefore, that the fight against corruption is very far from won and that we are not yet able to claim that we have done all that we can as best we can.
The National Development Plan 2030 highlights what I believe are essential matters for this conference to engage with:
“In addition to political will, corruption has to be fought on three fronts: deterrence, prevention and education. Deterrence helps people understand that they are likely to get caught and punished. Prevention is about systems (information, audit and so) that make it hard to engage in corrupt acts. The social dimensions of corruption need to be tackled by focusing on values, through education.
We propose several measures to strengthen South Africa’s anti-corruption arsenal:
And would like to continue being supportive by engaging in constructive criticism.
As I sat down to prepare this message, I was forced to reflect on the theme of the conference that I was being asked to support: “Responsive Service Delivery Through Ethical Governance.”
I had the privilege, dubious though it seemed at the time, of being schooled in grammar. My faithful textbook, Warriner’s English Grammar and Composition, Fifth Course, 1973 is still within arm’s reach where I sit at my desk in my study.
Warriner’s teaches that a sentence is a group of words that expresses a complete thought.
A sentence, it says, consists of two parts: the subject and the predicate. The subject is that part about which something is being said. The predicate is that part which says something about the subject.
And so, in the sentence, “The Deputy Minister of Justice is giving an inordinately long message of support,” the subject is the Deputy Minister and the predicate is what you are listening to.
I will spare you a systematic grammatical deconstruction of the theme. The point I wish to make is that, distilled to its essence, the theme of this conference is: “Delivery through governance” and that it is clearly implied that the governance being referred is first and foremost the governance of government.
I say so being mindful of the subtle yet very important distinction between the concepts government and governance.
Therefore, we can distil the essence of theme of this conference even further to read: “Delivery through (or by) government with the implication that the people are the recipients of this delivery. “Responsive” qualifies or describes the quality of delivery whilst “ethical” does the same in relation to governance. However, the bottom line, as they say, is “Delivery by Government."
To return to the language of grammar, government is the subject, service delivery is the object and the people are the indirect object. The very notions of delivery and, to a lesser extent response, imply passivity.
This is not just a matter of playing with words. Because, if it is correct that a sentence is a group of words that expresses a complete thought and, if it is true that our thoughts guide our actions, and that our actions enrich our thoughts, then it is imperative that we think with precision when dealing with these vital matters.
The problem that I have with the theme is that it seems to deprive those who it is intended to benefit of the most fundamental aspect of human dignity, that of agency.
In the words of our National Development Plan 2030:
“In many respects, South Africa has an active and vocal citizenry, but an unintended outcome of government actions has been to reduce the incentive for citizens to be direct participants in their own development. To prevent this practice from being entrenched, the state must actively support and incentivise citizen engagement and citizens should:
All sectors of society, including the legislatures and judiciary, have to ensure that the fruits of development accrue to the poorest and most marginalised, offsetting possible attempts by elites to protect their own interests at the expense of less-powerful communities.
Legislation provides numerous avenues for citizens to participate in governance beyond elections. Forums such as school governing bodies, ward committees, community policing forums and clinic committees provide voice to citizens and opportunities to shape the institutions closest to them.
Communities can also participate in drafting local government plans. Despite these avenues, there is growing distance between citizens and the government. Outbreaks of violence in some community protests reflect frustration not only over the pace of service delivery, but also concerns that communities are not being listened to sincerely.
Better communication, more honesty and a greater degree of humility by those in power would go a long way towards building a society that can solve problems collectively and peacefully.
Citizens have a responsibility to dissuade leaders from taking narrow, short-sighted and populist positions. Robust public discourse and a culture of peaceful protest will contribute to a deeper understanding of the challenges facing communities and reinforce accountability among elected officials. For example, if learning outcomes in a school are below their legitimate expectations, a community can help to remedy the situation by strengthening school governance, ensuring that learners and teachers are punctual, and that the support structures from public officials are effective.
More work needs to be done to emphasise the responsibilities that citizens have in their own development and in working with others in society to resolve tensions and challenges. The refrain, “sit back and the state will deliver” must be challenged – it is neither realistic nor is it in keeping with South Africa’s system of government."
I would like to conclude with the following words of Amilcar Cabral, taken from his paper, Apply Party Principles in Practice which is contained in a compilation of his works in Unity and Struggle published, I am proud to say, by the UNISA Press:
“Step by step we have to purge the unworthy elements from our party, the opportunists, the demagogues (deceivers of the people), the dishonest, those who fail in their duty. So as to clear the way increasingly for those who understand and live in its entirety the life of our party, to those who really want to serve the party and the people, to those who carry out and increasingly want to carry out and better their duties as militants, responsible workers and revolutionaries.
The correct application of the principles of criticism and self-criticism, of collective leadership, of democratic centralism and of revolutionary democracy is the most effective way for us to gain one to the most important victories, if not the most important, of our life and of our struggle, namely: to act so that our Party belongs more and more to those who are able to make it constantly better; to make of our Party an effective instrument for the construction of freedom, peace, progress and happiness for our people in Guinea and Cape Verde.”
I believe that these words are also relevant to our developmental state and, in this spirit therefore that I would like to propose that the theme of this conference be understood to mean:
“Working together to make our developmental state an effective instrument, working with the people in the construction of a better life for all in South Africa by strengthening ethical and participatory governance.”
We support this important conference.
I thank you.