By Rosalie Dieleman and David Lando, Research Associates PILPG-NL
Thuli Madonsela, former Public Protector of South Africa*, was invited by the Tällberg Foundation and TheRockGroup to a breakfast talk on 28 November 2016, which PILPG Research Associates Rosalie Dieleman and David Lando attended.
Ms. Madonsela is the former Public Protector of South Africa, Chairperson of the African Ombudsman Research Center in South Africa, and one of the drafters of the South African post-Apartheid constitution. She has been in the spotlight during the last year for a report she filed before leaving the Office of the Protector regarding the connection between South African President Zuma and Indian-South African lucrative businessmen Ajay, Atul, and Rajesh Gupta. The report “details a disturbing web of influence exerted over parts of the South African state by a powerful family of Mr. Zuma’s chums”, the Gupta family. The report indicates that the Gupta family was involved in political appointment, including that of the South African finance minister.
The breakfast talk, however, did not focus only on the report by Madonsela, but on her work as a Public Protector in general, and her views on the South African legal system. Her views on the role of the law in society were shaped by leaders such as Nelson Mandela, who, according to her, used the law as a tool to heal society, and to bring people together. In her role as a Public Protector she attempted to use the law in a similar way. This attitude was evident in her role as a co-drafter of the post-Apartheid constitution as well. When asked about her inspiration for drafting the constitution she responded that it came from observing the past and concluding what she did not want to be repeated, while looking to the future and envisioning the society she wanted to see in South Africa. This process, she says, was a part of what inspired the drafters to create the Public Protector institution, as a safeguard for constitutional democracy.
Ms. Madonsela often faced significant resistance in her attempts to apply the law as a Public Protector. When asked why, and how, she persisted in her investigation of President Zuma despite strong resistance from the Zuma camp and others, she answered that the right question should be: why wouldn’t I? She noted that investigating the people in power was her duty as Public Protector, and that continuing her investigation was essential for fulfilling the Office. The source of her personal motivation and what kept her going, she says, was notion she holds of the South Africa she wants to see.
Another point of interest was the recent withdrawal of South Africa from the Rome Statute, which we extensively discussed in other posts in this website. While negative consequences of the withdrawal were widely discussed, David Lando, Research Associate at the PILPG, inquired whether the withdrawal could also pose an opportunity for strengthening pan-African legal institutions. Madonsela noted that she loves the optimism of the youth, but that she is not sure optimism is warranted in this case. She argued that before withdrawing, states must have an alternative to the ICC already in place. At the moment, she said, the withdrawal leaves legal vacuum which will inevitably lead to impunity. She stressed the importance of fighting impunity by stating: “injustice is an open wound, until you have dealt with it, peace will never be sustainable”. An improvement of the African and South African legal systems that will allow them to prosecute serious international crimes will require commitment and serious effort, as changes such as these do not happen magically.
Ms. Madonsela is enthusiastic about the role people can take to change their societies. Drawing from her own experiences, she encouraged everyone to take a stand in shaping their societies according to their own values. She noted that change must come both from within and outside the system. For a change to be successful it must incorporate people that are within the political and legal systems of a State, civil society, and the public.
* explanation of the Office of the Public Protector: The Office of the Public Protector was established under Act 108 of the South African constitution of 1996. It mission is to strengthen constitutional democracy by “investigating, rectifying, and redressing any improper or prejudicial conduct in state affairs and resolving related disputes”. The jurisdiction of the Protector is extensive, as it “has jurisdiction over all organs of state, any institution in which the state is the majority or controlling shareholder and any public entity”.
 The Economist, South Africa’s Public Protector Finds “State Capture” by the President’s Pals, (Nov. 5 2016), Available at http://www.economist.com/news/middle-east-and-africa/21709512-clock-has-been-started-could-lead-jacob-zumas-removal-south-africas.
 Public Protector South Africa, Vision and Mission, (2009), Available at http://www.pprotect.org/about_us/Vision_mission.asp.
 Public Protector South Africa, History and Background to the Office of the Public Protector, (2009), available at http://www.pprotect.org/about_us/history_background.asp.