internal review of administrative actions;

judicial review; and

fiscal superintendence.

While, these standard controls undoubtedly continue to play an important role as a bulwark against administrative excesses, it is a fact that they do not always work at maximum efficiency. More particularly, they do not effectively provide for remedies for maladministration, particularly when an individual or a small group is affected. Consequently, governments all over the world have searched for more effective remedies for maladministration — hence the establishment of the office of an ombudsman or, in the case of South Africa, the public protector.

It is a known fact that citizens have always had the option of litigation to obtain redress for administrative improprieties, but litigation tends to be formal, expensive and dilatory to the point where the ordinary person is deterred from using it to establish or enforce his or her rights. A state is not genuinely ‘constitutional’ merely by virtue of the fact that it possesses a constitution. It achieves that quality or status only when the constitution acquires a practical significance, in other words, when the principles and rights enshrined in it can be translated into practice. The South African Constitution has established a number of institutions in the quest to make the Bill of Rights reality for the ordinary citizen. Constitutional government has, in the public protector, an important addition to the armoury of mechanisms that are employed to create the substance of fair and stable constitutional government.

It needs to be stated, however, that it is not only in the interests of the individual that government power must be controlled, but also in the interests of the government itself. This is so, because when the government has failed to meet the standards required of it, the individual loses confidence in it. Such a government may either be legislating its downfall, or even ensuring that it is not returned at the next elections. A government can stay in power in a democracy only if individuals have the assurance that their safety and other rights vis-à-vis the government are and will continue to be safeguarded and respected and that the government will behave correctly towards them at all times. ‘Sacrificing’ opportunities for the exercise of patronage does not weaken the democratic state. On the contrary, such restraint strengthens it.

The issue in question here is the legitimacy of the government and the willingness of the citizen to accept both the powers vested in government and the way these are used. Legitimacy is fundamental to every democratic government. This intangible and amorphous commodity is its so-called ‘working capital’, and it is on this capital that government can draw in devising and implementing effective policy. However, it must make a continual effort to add to this capital by working in a manner that will generate people’s acceptance. If it fails to do so, or does so too late, the real danger of a total breakdown of confidence will arise. When this happens, governments are replaced by unconstitutional means and, in some cases, even by military take-overs or coups d’états.

The relevance of the public protector in this context is to boost public confidence in that he or she is not only a watchdog, but also an official whom they can easily relate to. As an institution, it must be seen as one that protects the rights of the citizen at all times. Its mere existence should be a comfort — though not only to the individual citizen, but also to a government that takes clean and professional administration seriously. One way of doing this is for the public protector to launch ‘own initiative’ investigations, without having received any complaint. This he may do in terms of the Public Protector Act, no 23 of 1994.

THE INSTITUTION OF THE OMBUDSMAN

The main or principal form of external control in a democracy is that exercised by the legislature on the executive. Experience has shown that, however crucial the role played by the legislature in this respect, the control it exercises is generally inadequate, particularly in cases where one single individual is in need of protection. This is where the other external controls such as the constitutional court, the public protector and the human rights commission, among others, acquire particular relevance. The tasks each performs are, generally speaking, complementary and supplementary.

It follows that a public protector’s office, as one of the structures responsible for protecting the individual and monitoring the government, has a very important role to play in a democracy. Experience in countries that have established an institution like the public protector has shown that it can make a real contribution, both in specific cases and, in general, towards protecting individuals from wrongful government conduct and thus restoring their confidence in government. Individuals frequently feel powerless in the face of a government that neither sees nor hears them. Against this, the public protector is an individual who has a face, who is prepared to listen to their complaints at all times, and who takes them seriously, even when he or she decides not to investigate the complaints or dismisses them as being unfounded.

The South African version of the national/parliamentary ombudsman is the public protector. To the extent that it is possible to pin down some kind of sensible generalised definition of an ombudsman, the public protector’s office draws most of its characteristics from the classical national ombudsman of northern Europe, specifically Sweden, as well as exhibiting characteristics of the Commonwealth model.

In 1974, the International Bar Association defined the office of ombudsman as:

"an office provided for by the constitution or by action of the legislature or parliament and headed by an independent high-level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials and employees or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports."²

This definition accurately describes the office of the public protector in South Africa.

A description of the responsibilities of the office of the ombudsman (public protector) can be summarised as follows:

an instrument of human rights;

a unique mechanism of democratic control over the bureaucracy;

a formal avenue for redress of grievances against administrative wrongdoing; and

an instrument for tackling ‘bureau-pathologies’.³

It is a lingering misconception that the office of the public protector exists solely in order to protect citizens and members of the public from the misuse of power by the state and the government of the day. While the fact that this is a central element of the constitutional brief of the office cannot be denied, this formulation represents an oversimplification of the full range of responsibilities of the public protector. Such an oversimplification suggests that the state is the only institution that possesses power, or capacity to misuse it. It also suggests that the office exhibits a structural bias against the state and its employees. No doubt, the name ‘public protector’, while appropriate in the South African context, has played a role in fostering and perpetuating this misunderstanding, whereas the traditional name ‘ombudsman’ carries within it more the sense of being a ‘referee’, an analogy that is closer to the truth.

Established in terms of Chapter 9, State Institutions Supporting Constitutional Democracy of the Constitution of the Republic of South Africa Act no 108 of 1996, the public protector’s office is, in the wording of section 181(1), intended to "strengthen constitutional democracy." The public protector’s office, strictly speaking, could fulfil this mandate by simply protecting the public against the might of the state.

However, to impose such a narrow interpretation of the brief would be to ignore the fact that ‘the state’ is not a lifeless monstrosity but is, rather, itself peopled by citizens who have an equal claim to the protection of their policies, decisions, reputations and careers against mistaken or malicious accusations or suspicions. Similarly, ‘the state’ as the repository of vast power and influence, is properly seen as an essential contributor to the health and vitality of the country’s constitutional democracy. As such, the democratic and constitutional state needs to be protected against a growing lawlessness and disrespect for authority, and against fellow citizens who threaten to undermine the freedoms which currently characterise South Africa’s fledgling constitutional democracy.

These threats may originate internally or externally to the various departments or institutions of the state but, in either event, the state needs to be protected. Thus, where an official is justly accused of corruption (an internal threat), the citizen-complainant’s rights are in need of protection. Where, on the other hand, an official is unjustly accused of corruption (an external threat), the citizen-official’s rights are in need of protection.

In either event, the public have an interest in ensuring that justice is done and that public and private power is exercised fairly. The public interest in the strength of the bulwarks against both authoritarianism and anarchy is served when public and private power is justly exercised. The public interest in state and individual freedom and security is served when the individual citizen is assured of justice.

It is in these broad terms that the task of the public protector’s office should properly be seen. While the focus of its activities is on the "conduct in state affairs, or in the public administration in any sphere of government", this should not be taken to mean that the public protector’s mandate is limited to a finding that an official has transgressed in some way. The reverse may be true and it may accordingly be found that a complainant has acted upon a misunderstanding, inaccurate information or perception, or on some malevolent motive. In such circumstances, and in order to redress the balance and restore equilibrium in the continuing relationship between the citizenry and the state administration, the public protector will be obliged to say as much and to help dispel the cloud of doubt hanging over the state department or its employee.

The classical ombudsman and South Africa’s public protector exhibit several defining characteristics. Apart from being a complaint-handling mechanism (as opposed to a complaint repository), the public protector, like the classical ombudsman, lacks executive authority. He or she possesses only persuasive powers in the form of the right to make recommendations, or by means of the ability to engage in negotiation or mediation in order to resolve grievances. This latter feature distinguishes it from other anti-corruption entities and agencies that usually possess powers of enforcement in some form.

While this difference, at first glance, may appear to relegate the ombudsman to a back-seat role in the fight against corruption, the truth of the matter is that it is an advantage, for several reasons.

The very absence of executive authority makes it relatively easy to accord real independence and a wide mandate to the ombudsman. These, in turn, bring with them a great freedom of movement and of action. Thus, for example, the ombudsman is afforded simple and quick access to confidential documentation held by the state and individuals, coupled with the power to refuse to disclose it to any person.

INDEPENDENCE

The institution of the public protector, however, must satisfy certain criteria in order to play its role effectively. The first and most important criterion is that of independence from the administrative authorities that fall within the public protector’s jurisdiction. Independence is essential if individuals are to have any confidence in the work of the institution. Thus, the public protector should be seen as a referee, acting neither for nor against either side, whether it is an individual complainant or the administration complained against. As the Ombudsman of Alaska once put it:

"Ombudsmen are men and women who act as neutral, non-partisan investigators of government decision or actions. In this role, Ombudsmen act as a ‘Public Watchdog’, but can also protect Public Officials from unfair criticism by a co-worker or citizen. The mission of Ombudsmen is to help make government more efficient, ethical, responsive and fair."⁴

 The establishment of the office is a positive sign for, in the words of Caiden, MacDermott and Sandler:

"The existence of an independent ombudsman office denotes a clear indication by the rulers that they recognise obligations and duties to the ruled, that the ruled should be treated justly, promptly, and courteously, that they should be granted their due according to the law, and that public business should be conducted honestly and efficaciously."⁵

Accepting that governments are a necessary evil without which people cannot be, it becomes a non-debatable fact that control of public power is crucial to the survival of democracy. Experience both locally and internationally confirms this.

Independence characteristically means, inter alia, that:

The ombudsman is appointed and removed by the head of state after a decision by the democratically elected national legislature, by a special majority. He or she is accountable to the democratically elected national legislature and is only indirectly controlled by means of powers delegated by statute. This accountability takes primarily the form of the requirement that the ombudsman report regularly to the legislature. He or she should, accordingly, not be appointed or dismissed exclusively by, or be required to report to any element of the executive (whether a minister, the cabinet or the president) or administrative arms of the state.



He or she can refuse to disclose to any person any information that relates to an investigation.



He or she is competent but cannot be compelled to act as a witness in a court of law.



He or she is empowered to initiate investigations without awaiting receipt of a complaint.



He or she has powers of subpoena, search and seizure, and of taking evidence under oath.



He or she possesses the discretion to publish reports and recommendations.



He or she is not dependent for budgetary allocations solely upon any element of the executive or administrative arms of government.



He or she is afforded a mechanism whereby he or she can report directly to the legislature.

WIDE AND CLEAR MANDATE

Given the underlying principles of accountability, openness, freedom and equality enshrined in the Constitution, it becomes clear that, inter alia, the office of the public protector has been instituted to:

ensure that public sector institutions do not, in their functions, abuse their powers;



guarantee that public servants observe and uphold constitutional principles and directives; and



build and sustain, in the public sector, a sense and culture of service, responsibility, discipline and honesty.

These desired results call for the creation of a public service that is human rights conscious and, accordingly, responsive. The public protector is called upon by the Constitution to support those facets of the public service that, collectively, are attributes of a constitutional state, and to encourage in its personnel a human rights ethic.

Generally, the office of the public protector has to deal with public administrative issues. In this regard, Section 33 in Chapter 2 of the Constitution refers specifically to fundamental rights related to administrative matters. Essentially, it sets the standard that the public protector’s office has to safeguard and monitor. In a more obscure, less apparent sense, though, the public protector, as presently constituted, is a farreaching constitutional institution that is also tasked with promoting and protecting basic rights.

Traditionally, human rights as accepted internationally today have not been a matter over which the ombudsman/ public protector has jurisdiction. The jurisdiction of the ombudsman/public protector in the classical sense was concentrated mainly on investigating of maladministration and making recommendations regarding complaints of aggrieved persons against state institutions, administrative bodies, officials and employees about unreasonable, unfair and discourteous administrative action. Through investigation, mediation, conciliation and even negotiation, an Ombudsman was enabled to bring about a settlement between the complainant and the administration, the revocation of an official decision, or even a change in policy. The idea of the protection of human rights by means of the office of the public protector has evolved gradually.

The public protector is increasingly regarded as an instrument that is suitable for the protection of certain basic human rights of the individual, largely because he or she is more accessible to the individual. The office of the public protector can be approached informally without involving any complicated procedures or processes. His or her services are available at no cost to the individual complainant who may also be indigent. The sense of utter powerlessness and frustration that individuals experience when their rights have been infringed and they are forced to face the might of administrative bureaucracy is thus, hopefully, eliminated.

Chapter 9 of the Constitution has established a number of institutions as important additions to the armoury of mechanisms that are employed to create a fair and stable government. Institutions which support constitutional democracy, such as the Constitutional Court, the Human Rights Commission, the Commission for Gender Equality, the Auditor-General and the public protector can function individually or in tandem with one another. The same applies to other public sector institutions established in terms of their own legislation, such as the Independent Directorate: Serious Economic Offences and the Heath Special Investigative Unit. When supplementing and/or complementing one another, they form an effective net for any blunder in the exercise of administrative power.

The public protector is, however, the one institution among the above watchdog institutions with the most general mandate and, as such, the widest scope of control over executive power. The importance of the office of the public protector, in working in tandem with these other constitutional institutions for the control of executive and administrative power, lies in the fact that it has the broader and more general mandate, so that the sphere of investigation becomes wider.

Because of this, it can operate to some extent as a clearing house, referring appropriate cases to the other so-called constitutional ‘watchdogs’, and even other ombudsmen or legal assistance bodies in the public and private sectors, and civil society.

South Africa’s office of the public protector also addresses issues of human rights and corruption in the broad sense. As a protector of human rights, it deals primarily with the constitutional right to administrative fairness and access to information. In terms of corruption, the public protector has a wide mandate to investigate corruption in the broad sense of any conduct that reflects slippage from ideal norms and standards.

Although not originally designed to combat corruption as commonly understood, but rather to address grievances relating to administrative issues, the institution of the ombudsman, with its unique set of tools and competencies and its focus on the quality of governance, has proven itself to be a useful ally in the struggle against this common human frailty.

EQUITY AND ETHICS

Although the ombudsman exists to uphold the rule of law and to strengthen constitutional democracy, he or she is at liberty to be guided principally by considerations of fairness and natural justice, rather than being bound by the strict, narrow letter of the law. As such, his or her task is to mediate and persuade in order to ameliorate the often unforeseen consequences of laws of general application, and not only to recommend corrective action in cases of clear breaches of the law. In this context, the public protector is strongly guided by the spirit of the values infusing the Constitution.

ACCESSIBILITY

This same absence of coercive power allows greater operational flexibility and informality. This means that public access is greatly facilitated, giving the ombudsman the advantage of insight into a wide spectrum of life experiences. The public should be able to have ready access to the ombudsman, regardless of their financial or social status or the resources available to them.

Thus, the ombudsman will need to be accessible, among others, to those in rural areas, through mechanisms such as regional offices or travelling clinics; those who are disabled or unwell; and those who are illiterate or speak only their mother tongue. He or she will also require an adequate staff complement who are suitably educated and trained. All of these, of course, have implications for the national fiscus and for budgetary allocations.

ADDITIONAL FEATURES OF POWER

When it is considered that an ombudsman is frequently given the authority to request assistance from other state agencies, which are, in turn, obliged by the Constitution to co-operate in rendering such assistance, the initial impression of the ombudsman’s powerlessness is further dissipated. In any event, significant procedural powers such as search and seizure, subpoena, and administering the oath, that are usually afforded to the ombudsman, assist him or her to obtain credible evidence when making and publishing findings.

THE PUBLIC PROTECTOR AND CORRUPTION

Perhaps these brief arguments would be rather more meaningful if they are placed within the context of what corruption is understood to be within the tradition of the ombudsman.

Corruption has, of course, a hard core of meaning, usually understood to be reflected in the definitions of the criminal versions of the activity. But corruption may also be understood in a broader sense. Thus, it is defined in the Shorter Oxford Dictionary as:

"— The destruction or spoiling of anything, especially by disintegration or decomposition. Making or becoming morally corrupt; the fact or condition of being corrupt; moral deterioration; depravity.

— Perversion of integrity by bribery or favour; the use or existence of corrupt practices.

— The perversion of anything from an original state of purity."

Thus, the deterioration of moral or ethical standards in the public service, the perversion of the integrity of its officials and the inevitable result this would have — the destruction of an efficient state administration — could all be classified under the heading ‘corruption’. To bribe or accept a bribe would be only one example, but maladministration could also lead to the corruption (in the broad sense) of state administration. It matters not whether such maladministration is due to ignorance, laziness or merely decisions taken without due and proper consideration, as opposed to deliberate malfeasance.

Similarly, the abuse or unjustifiable exercise of power could be an indication of the deterioration of ethical standards, or the perversion of integrity, as would unfair, capricious, discourteous or other improper conduct on the part of an official. Even undue delay by an official could indicate such deterioration or perversion. These forms of improper conduct could be a manifestation of the deterioration of ethical standards, or the perversion of integrity within the public service and thus corruption in the broad sense.

Corruption can also be defined as acts involving the misuse of entrusted power for personal or sectional gain.⁶ Corrupt practices in government undermine democracy, for they distort normal decision-making processes and subvert the policy objectives of legitimate democratic government. Corruption perpetuates discrimination as it results in unfair advantage or undeserved benefit. Ultimately, corruption, if unchecked, can destroy a democratic society.

These are issues which are firmly within the public protector’s (and most ombudsmen’s) brief or mandate and, as such, indicate that the ombudsman is an important roleplayer with regard to corruption, both in the narrow and broad sense.

To refer, by way of example, to the provisions of the Public Protector Act, no 23 of 1994, he or she has jurisdiction over:

"maladministration in connection with the affairs of government at any level;



abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function;



improper or dishonest act, or omission or corruption, with respect to public money;



improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function; or



act or omission by a person in the employ of government at any level, or a person performing a public function, which results in unlawful or improper prejudice to any other person..."

These provisions should be seen in the context of the broad wording of Section 182(1)(a) of the Constitution of the Republic of South Africa Act, no 108 of 1996, which reads as follows:

"The Public Protector has the power, as regulated by national legislation (viz. the Public Protector Act) -

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 ..." (emphasis added).

In many instances, what may be investigated by an ombudsman under the powers referred to above, would amount to the criminal offence of corruption. For instance, in a complaint by someone that they have suffered improper prejudice at the hands of the state, the improper prejudice could turn out to have been caused by a criminal act. An example would be where someone is aggrieved by not having been awarded a tender, and it appears that an official had been bribed to give the tender to another party.

Under circumstances where evidence of criminal wrongdoing is clear, the public protector has the discretion to refer the matter to the authorities bearing the responsibility of criminal prosecution.

Similarly, a complainant may allege that he or she was improperly prejudiced by a decision taken by a local authority. It may emerge that a councillor who had a (legal or illegal) interest in the affair did not declare such an interest and did not abstain from voting when the decision was taken at a council meeting. This would amount to a contravention of the Code of Conduct for City Councillors, thus warranting intervention by the public protector on the basis that it constituted improper conduct by a person performing a public function.

These examples would all constitute corruption in the broad sense, of course, even if not in the legal-technical sense. On the other hand, with regard to public money and improper or dishonest acts, the actions of an official who accepts a bribe, steals or defrauds for self-enrichment would always amount to criminal conduct, and the crime of corruption in some jurisdictions.

However, the ombudsman’s competence to investigate extends much further than merely complaints that could be classified as criminal acts capable of being prosecuted in a criminal court. There is a large grey area between criminal and acceptable behaviour where the ombudsman would be able to investigate and recommend corrective action or procedures. Thus, he or she can investigate matters that fall into the frequently grey and ill-defined area of ethics, where a law may not have been transgressed, but where the community’s sense of right and wrong is offended. Because of this characteristic responsibility of an ombudsman, the institution is able to operate as an early warning system, with the responsibility to monitor, inter alia, aberrations from the standards of ethical conduct that fall short of the narrow definition of criminal corruption.

An ombudsman may thus be compared to the caged canary carried into coal mines to detect noxious gases, or to the frog that serves as an indicator of the presence of toxic pollutants in water sources. In this sense, the ombudsman is uniquely placed to report on what Transparency International has termed ‘integrity slippage’, which is often a precursor to, or is otherwise associated with further forms of misconduct and corruption.

A typical example might be where it is alleged that someone received an improper advantage in that he or she was awarded, through the intervention of a family member who works for a certain department, contracts which the department put out to tender. It might be found that no criminal act is involved, but that the behaviour was unethical.

Nepotism is not yet classified as criminal in South African law, yet it is clearly reprehensible and sufficiently unacceptable to require action on the part of the ombudsman. Furthermore, the act of nepotism may be a red flag alerting the ombudsman to the possibility of the official’s perceived need to be surrounded by those considered to be more than ordinarily capable of being relied upon to act with ‘discretion’.

In a recent instance of what might be termed ‘attempted nepotism’, a complainant expressed apparently genuine amazement that his deceased mother’s job in a provincial government department had not automatically been given to him as her eldest son. Few institutions would be as suitably placed as an ombudsman, with an avowed educational role, to deal with the fallout of such divergent cultural expectations. An important element of the public protector’s task of protecting the public interest is to play a role in sensitising the public mood by pointing out or confirming to the public at large what is or is not corrupt or unacceptable conduct.

A somewhat different example would be where fraud is rife in a certain department. The investigation and prosecution of the perpetrators would have to be dealt with by the prosecuting authorities, after referral of the problem by the ombudsman. But the investigation to find and remedy the systemic or environmental cause of the fraud that is so rife, would lie with the public protector/ombudsman if the cause falls within what could be described as the public administration.

The ombudsman is required to analyse trends in these behavioural areas in government and to recommend specific or systemic corrective action in order to remove the cause of repetitive aberrations or corrupt behaviour. The fact that crime or corruption does occur within the public administration, could be an indication of a systemic or structural defect. It is indeed the public protector’s business to identify instances of systemic maladministration, and to rectify the situation.

A BRIEF COMPARATIVE CONSIDERATION OF DIFFERENT FORMS OF 'ANTI-CORRUPTION' AGENCIES

It will be apparent that many of the above functions are quite inconsistent with many other methods of combating corruption. For example, criminal enforcement by the National Directorate of Public Prosecutions and the tools of civil recovery of the proceeds of crime and corruption, as utilised by the Heath Investigative Unit and Tribunal, and the Assets Forfeiture Unit established in terms of the Prevention of Organised Crime Act, sit uneasily alongside methodologies such as mediation, negotiation and persuasion as tools for securing practical solutions to many kinds of grievances against state and government entities. Where the prospect of disciplinary action or criminal prosecution exists, even as a possibility, individuals and departments would frequently be unwilling to be candid and co-operative with an ombudsman’s investigation.

Reference may be made here to an example from the Canadian experience where the same person occupied the offices of the ombudsman and of the freedom of information commissioner. These two roles may be broadly compared to the South African institutions of the public protector and the Human Rights Commission, respectively. The former is traditionally seen as at least endeavouring to be unbiased and objective in its activities, while the latter is necessarily more activist in nature.

The Canadian official found that, apart from the practical difficulty he experienced in divorcing his two roles, the ‘credibility’ of his findings and recommendations was unavoidably coloured, in perception at least.

Further, as alluded to earlier, the ombudsman’s investigation has a different focus to that of criminal enforcement or civil recovery mechanisms. The latter focus on individual cases of illegal activity and thereby attempt to contribute to the greater national well-being. The ombudsman, on the other hand, may be said to use individual complaints in order to achieve his or her primary goal — that of an holistically efficient and responsive public administration.

Similarly, the degree of transparency ultimately associated with proceedings in open court does not necessarily assist when quick, simple compromises are sought to remedy individual concerns. Obviously, where an investigation reveals criminal conduct or other forms of misconduct, the public protector takes the exercise of discretion to refer an appropriate matter to the prosecuting or other responsible authorities seriously. There are occasions when resort to this method of addressing a complaint or grievance is the only appropriate route to follow, but the obligation to do so clearly bears with it the potential to inhibit the room for manoeuvre required for effective problem-solving.

Another significant difference that may be encountered — this time within the ombudsman movement — is the extent of the jurisdiction within the broadly defined public sector. South Africa, for example, has its national ombudsman existing as a constitutional entity separate from and with some jurisdiction over the criminal investigation and prosecution, and civil recovery agencies. The office has the responsibility of investigating administrative issues associated with the judicial arm of government. Consistent with the separation of powers, however, it is pertinently barred from investigating the decision of any court of law. Certain other countries, specifically in Scandinavia, have empowered their ombudsmen with broader authority over the judicial branch of government.

Other countries, including some within the Commonwealth, do not have an ombudsman-type institution. Some countries, such as Hong Kong, have a single agency that combines the tasks of criminal investigation and prosecution with the more flexible tactics usually associated with the classical model of an ombudsman described earlier.

Other Commonwealth countries, such as Canada and Australia, and countries with a federal constitutional structure, such as the United States, have individual state-based ombudsmen who liaise with departmental inspectors-general. Australia has a specialised national anti-corruption agency in addition to its individual state-based ombudsmen.

The relative or comparative advantages and disadvantages of these various forms of institutional intervention are the subject matter of intense debate.

NOTES ON SOME SPECIFIC PROBLEMS IN THE SOUTH AFRICAN EXPERIENCE

Regardless of the positive theoretical perspectives briefly described above, the practical experience of the ombudsman institution in South Africa may be reflective of similar experiences in other developing countries:

The perception exists that there is a lack of commitment by some political leaders and officials to justice, equity and fairness, as interpreted by the public protector, as well as to fight corruption. Instances of reluctance and even failure to co-operate or to implement recommendations have been encountered, although these may originate among the less well-informed sectors of the country’s governance structures. It is, however, necessary to recognise that this is not a problem only facing the ombudsman institution.

Furthermore, it may not be inappropriate, particularly in view of the important educational role of the public protector in strengthening constitutional democracy, to adopt a long-term perspective when confronted by such isolated instances of reluctance to implement certain recommendations.



A potential threat is posed to the independence of the public protector’s office by the justice minister’s power to appoint a deputy public protector.⁷ As discussed earlier, independence is a jealously guarded characteristic of an ombudsman, essential to the credibility of findings and the persuasive influence of recommendations. The potential of control implied in the power to appoint and dismiss carries with it the seeds of a fatal lack of credibility.



Widespread ignorance among many public officials and holders of public office concerning the constitutional status, role and function of the public protector must be recognised. During the drafting of the Constitution, it was acknowledged that the concept and name of an ombudsman is somewhat alien to South African society. But the alternative title of public protector has created its own difficulties with the not insignificant perception that it is not an impartial institution, but a legal aid organisation akin to the public defender or a firm of attorneys specialising in actions against the state and/or individual employees of the state.

Consequently, the office has recently launched a national awareness campaign designed to educate, among others, those with whom it works and upon whom it frequently has to rely in performing its constitutional mandate.



It perceives itself to be struggling with underresourcing. This perception is evident in terms of funding and staff overload which, in turn, leads to uneven accessibility to the office, backlogs and delays. Like most other institutions in South Africa, of course, it maintains that it both needs and deserves a larger slice of the pie. Although reminded of the aphorism, ‘justice delayed is justice denied’, it is necessary to remember that South Africa is a developing country with limited resources that are thinly spread. Does the focus then fall on what can be achieved and on those who have been assisted, or on what is not possible in the circumstances?



South Africa presently has inadequate whistleblower protection, although early drafts of the Open Democracy Bill carried the seeds of substantial improvements in this regard. The public protector, in terms of its own Act, is empowered with extensive rights of confidentiality, coupled with the right to refuse to disclose information, thereby affording complainants, witnesses and other informants anonymity on request. Later drafts of the Open Democracy Bill heralded an override of this right to refuse to disclose sensitive information, and did not guarantee such confidentiality when a complaint or report is lodged with this or other watchdog institutions. Similarly, where the public protector refers matters to the criminal investigative authorities, that anonymity is at least potentially lost, particularly where effective witness protection is not guaranteed.

Whistleblower protection has now been largely severed from what has become the new Promotion of Access to Information Act — passed by Parliament, but not yet promulgated at the time of writing. Details of whistleblower protection are to be addressed in a separate piece of legislation.

In the meantime, however, the new Act permits the public protector to refuse total transparency in certain circumstances. (As will appear below, however, any possible protection that might be offered to whistleblowers is quite illusory.) Despite a general duty, enshrined in the Bill of Rights and elaborated in this Act, to afford access to information held by a public body that is required for the exercise or protection of any rights, the new Act, inter alia in section 37, permits the public protector to refuse access to certain information in particular circumstances.

Section 37 provides that the public protector (and all information officers of public bodies) must refuse a request for access to information of which the disclosure would constitute the breach of a duty of confidence owed to a third party in terms of an agreement. The public protector and the supplier of information may consequently ‘contract out’ of transparency where it is considered necessary and appropriate. The protection of the identity of a whistleblower, in appropriate circumstances, could clearly satisfy both criteria and such an agreement may then be warranted.

In the absence of any agreement, the public protector may still refuse a request for access to information supplied, inter alia, in confidence by a whistleblower. Such refusal would be warranted where disclosure could reasonably be expected to prejudice the future supply of similar information, or information from the same source, and if it is in the public interest that such information should continue to be supplied.

Given present South African realities, and president Thabo Mbeki’s repeated anti-corruption commitments, it would clearly be in the public interest for persons to be encouraged to come forward with information about corruption, maladministration and criminal activities. Consequently, this provision will hopefully encourage potential whistleblowers with the knowledge that the public protector will be enabled to insist upon the protection of their anonymity.

As alluded to above, however, the protection contained in section 37 is entirely inapplicable where the public protector is requested to grant access to a record of information furnished by any public body. Because the definition of ‘third parties’ (whose records and information are protected in the hands of the public protector, in the circumstances described above) as utilised in section 37 specifically excludes ‘public bodies’, information provided by them to the public protector is not protected from disclosure. Consequently, where the identity of any public service whistleblower appears in or is discernible from any record of information furnished to the public protector by any public body, the identity of such a whistleblower cannot be protected by the public protector in terms of the new Act.

Where the public sector whistleblower’s identity does emerge, for whatever reason, the rudimentary and limited protection against victimisation in the workplace, mooted in various drafts of the Open Democracy Bill, continues to remain unavailable at this time. The ever-present fear of reprisal will continue to find expression in fewer complaints lodged with the public protector about serious issues and in the poorer quality of information and evidence supplied to the office.



Together, these factors have led to instances of expressions of a consequent lack of confidence in the ability of the public protector’s office to achieve successes in the fight against corruption. Similarly, Election 1999: Where have we come from? A balance sheet of the political transition⁸ implies as much when it is stated on page 89 that:

"more is expected of [the Public Protector’s office], especially in the first term of office of President Thabo Mbeki, who has sworn to fight corruption in the public and private spheres."

The public protector’s office is consequently placed between the proverbial rock and a hard place. More is expected, while some of the tools required to perform effectively are being denied.



The co-ordination between and co-operation with other entities fighting various forms of corruption in a variety of ways have proven something of a challenge. Public confusion concerning who does what and how has led to the public protector’s office, as the most accessible to the person in the street, becoming a kind of clearing house for corruption complaints. While this assists in obtaining a slightly broader than otherwise impression of the extent of the problem of corruption, it has also created significant time and management constraints.

On the other hand, the recent series of high-level, presidentially endorsed anti-corruption conferences have facilitated the enhancement of co-operation between South African entities charged with the responsibility to combat corruption in its various incarnations. A public sector co-ordination committee has been established and is producing results in the sense that participants are becoming more aware of the variety of ways in which they can co-operate effectively.

In addition, the 1999 National Anti-Corruption Summit has recognised the need for broader, public-private sector co-operation, and a cross-sectoral co-ordinating structure has been initiated and has commenced with a detailed examination of this issue.

On the other hand and alongside all these challenges, it is appropriate to mention one extremely significant positive factor inherent in the institutional fragmentation of the struggle against crime and corruption. In a constitutional democracy predicated upon the recognition that power corrupts, the extension of the principle of the devolution of power constitutes a valuable check and balance against the potential of abuse within the anti-corruption movement.

Reference to historical experience of human nature would suggest that a spectrum of agencies keeping an eye on each other while co-operating in the fight against the insidious evil that is corruption cannot be altogether bad.



Finally, it will have been apparent that not all of the problems described here will be specific to the office of an ombudsman. Many institutions, in their diversity of experiences, will have encountered similar difficulties. This may well only serve to reinforce the view that different societies, with their varying cultural traits and political structures, will necessarily prefer divergent solutions to the common problem of corruption. It would be extremely difficult to deny some valuable contribution from almost every kind or type of agency.

This is not to deny, however, that a great deal can be learned from others. Perhaps this is where Transparency International’s concept of Networks of Integrity is a particularly innovative and valuable insight.

Ultimately, however, as Justice Hand of the US Federal Court said in his book, The spirit of liberty:

"I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts [and, one might add, upon institutions such as those under discussion here]. These are false hopes, believe me. They are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court, can even do much to help it."

This insight from a respected jurist seems to emphasise the need for maximum co-operation and communication between all anti-corruption agencies and, frequently, non-governmental structures that are directly involved in establishing a culture of moral and ethical behaviour, and of respect for human rights. In the current climate of a growing understanding of the meaning and extent of corruption, such co-operation is not a matter of choice, it is imperative.

NOTES

This article is published as part of a project funded by the European Union, entitled Support to the ISS in Security Policy Advising Project agreement no SA/7-3200-98/006.

The author thanks the public protector, Adv Selby Baqwa SC, and the assistant to the public protector, Dr Tinus Schutte, for their helpful advice during the preparation of this article. Responsibility for the views expressed remains his own.

Quoted in H Rudolph, The ombudsman and South Africa, South African Law Journal 100, 1983, p 93.



This definition was contained in a resolution passed in August 1974 at the Vancouver meeting of official delegates of member organisations: Ombudsman and other complaint-handling systems X (1980-1) 1, quoted in Rudolph, ibid, p 92.



G E Caiden, N MacDermott & A Sandler, The institution of the ombudsman: International handbook of the ombudsman, Greenwood, London, 1993, pp 4-8.



Source unknown.



International handbook of the ombudsman: Evolution and present function, Greenwood , London, 1983, pp 3-4.



Towards a national integrity strategy for Namibia: A national discussion paper, Technical Committee on the Promotion of Ethics and the Combating of Corruption, Windhoek, 1998, p 7.



See section 3(2) of the amended Public Protector Act no 23 of 1994.



Development Update 3(1), 1999.