Paul Hoffman SC, Director Accountability Now
6 August 2018
It is a sad reflection on the state of affairs in South Africa today that the leader of the Opposition has to put pen to paper, or at least speech writer to laptop, to extol the virtues of accountability. Mmusi Maimane has likened accountability to the baking powder that makes the cake of good governance rise. Actually, under the rule of law, accountability is more like the oxygen that enables survival.
In the first chapter of the Constitution headed “Founding Provisions” it is stated that we have “a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.
In the chapter devoted to the Public Administration it is confirmed that the values and principles enshrined in the Constitution include that the “Public administration must be accountable”.
There are various accountability mechanisms in the Constitution – free and fair elections at regular intervals to enable the public to exact accountability from its political representatives at national, provincial and local levels. Oversight by Parliament of the executive, a range of Chapter Nine institutions to support constitutional democracy in the affairs of state, the public administration and in respect of the human rights guaranteed to all in Chapter Two of the Constitution, our much vaunted Bill of Rights.
The Constitution also positions the rule of law as “supreme” along with the Constitution itself. These provisions constrain the exercise of public power and enable the courts to strike down as inconsistent with the Constitution any law or conduct impugned for its validity by any interested litigant who turns to the courts for their assistance in impartially adjudicating disputes without fear, favour or prejudice. The entire judiciary can be viewed as an accountability institution that ensures that the government and the people remain on the transformational path set out in the Constitution and do not wander onto some other trajectory not contemplated by the National Accord which informs the Constitution.
The World Justice Project is an international initiative that advances, supports and promotes the rule of law through research and the production of its valuable Rule of Law Index.
The rule of law has been authoritatively defined by the World Justice Project as having four main elements:
The government and private actors are accountable under the law.
The laws are clear, publicised, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
Accessible and Impartial Dispute Resolution
Justice is delivered timeously by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the make-up of the communities they serve.
It is not for nothing that accountability takes pride of place as the first element of this widely accepted definition. Those contemplating expropriation of property without compensation (better known as confiscation) would also do well to consider the respect for property rights which the rule of law demands and requires.
The baking powder analogy becomes more tenuous when one pauses to note that all of the features outlined above belong in the constitutional democracy 101 class of information.
However, the accountability we have come to know and to recognise all too often in South Africa is not the kind of accountability that is envisaged in the constitutional provisions and in the rule of law itself. Instead we have accountability to party bosses who control the names that reach “party lists” from which public representatives are chosen. Then there is the accountability to the national democratic revolution, which has less than nothing to do with constitutionalism, and the all too well known accountability to patronage networks, systems of kleptocracy and the cronyism which has marked the attempted capture of the state and the general lack of progress in the implementation of the levels of service delivery required by the new order since 1994.
Most African constitutions today do make provision for accountability whether expressly or by necessary implication. It is the process involved in invoking the notion that gives rise to an interesting debate on topics as diverse as keeping elephants out of rural rice fields in Uganda and combating corruption in most places in Africa.
In South Africa the Constitution is quite explicit about the matter: public administration must be accountable and the founding values of our new order include the same concept along with openness and responsiveness to the needs of the people.
It is however necessary from the perspective of those seeking to hold governments to account to distinguish between legal and political accountability. The process of holding a government to account when it has strayed from the requirements of that which is legal in any country is quite different from that which is applicable to a perfectly legal policy position with which an NGO or any interest group, do not agree. The distinction is not always readily apparent and is often not appreciated by advocacy groups to the detriment of their efforts to change any given situation for the better. The first question is always: “Is this a ‘nice to have’ or a legal ‘must’?”
The process of holding a corrupt government to account for example could lead, in the final analysis, to litigation. The process of doing so in a situation in which there are inadequate policies or under-funded efforts to keep elephants out of the rice fields, but no illegal conduct by government is a different one. The former is a “must” the latter a “nice to have”. Both processes do begin in the same way: the issue is identified, the facts are researched, analysis both empirical and comparative takes place, submissions are prepared, a process of sensitisation of society and decision makers is engaged using the technologies now available from the lowly SMS to the mighty media across the print, electronic, radio and television spectrum, lobbying and networking around the issue follows, then petitions, protest action, boycotts and possible civil disobedience follow all with a view to persuading government that the position taken by it can be improved in manner desired. In the case of political issues, short of a revolutionary change, that is where the process must end.
However, in those cases in which a government is being held to account for illegal acts or omissions for which it is responsible further strategies are available through the Courts. Criminal charges can be laid. Improper decisions can be taken on review. Governments can be held to the value system espoused in the constitutions by which they are bound and propriety can be accountably restored via the relief available from the independent judiciaries of the continent. A complaint to a Chapter Nine institution is available in some cases, at no cost to those complaining. Declarations of rights and orders of Court directing that the necessary remedial action be taken are available to determined litigants.
The experience of South Africans since 1994 is that there is not much appetite for accountability of any but the nefarious kinds in the current “proportional representation across the board” system of governance. A rear-guard action on many fronts has been fought by various civil society organisations and individual activists like Bob Glenister (anti-corruption machinery of state), Paul O’Sullivan (corruption generally), Imraan Mukkadam (the bread cartel) and Terry Crawford-Browne (the arms deals).
It is vital that any person or organisation taking issue with government on a matter of concern should at the outset identify whether there are legal remedies available as a matter of last resort or whether the outcome desired requires the co-operation rather than the coercion of the delinquent government. The strategy and tactics to be employed in each of these distinct situations can differ widely, depending also upon the resources available to bring to bear upon achieving the desired result. It is always preferable to achieve a goal by means of dialogue and non-confrontationally, whenever this is possible. But when it is not, activists need to remember that their willingness to litigate over the issues they espouse is an accurate (though not the only) measure of the level of their commitment.
Much can be achieved through negotiation and consultation conducted with skill, principle and determination. When all else fails, governments committed to the rule of law and constitutionalism will respect the efforts of those who litigate to claim that which is rightfully theirs. The experiences of the Treatment Action Campaign and the Rail Commuters Action Group in South Africa are good examples of how, after losing the litigation, the government has taken steps to “straighten up and fly right” as a result of which there are treatments available for Aids sufferers and (marginally) safer trains for commuters. There is much to be learned from these case studies. Small and determined groups can, by boxing smart, change the world, including our continent.
Whilst it is sad that the leader of the official opposition has had to speak out about the lack of proper accountability in the land, it is sadder still that the various organisations which seek, in their chosen fields of endeavour, to hold government to account receive so little in the way of public support for their efforts. IDASA, once at the forefront of the struggle for clean governance, was ignominiously liquidated, others struggle on using shoe-string budgets and much imagination to keep at the task of exacting accountability in fields as diverse as education, health, housing, voting rights, whistle-blower protection, minority rights, gender equity, corruption and upholding constitutionalism in general. 1
Unless those in positions of authority are made to explain their actions rationally and justify the reasonableness of their decision making, the future of governance in SA is bleak beyond measure.