Saturday 13 October 2012

TRACING ACCOUNTABILITY IN SOUTH AFRICAN GOVERNANCE FRAMEWORK


By Yasin Maoni
1   INTRODUCTION
South Africa is a constitutional democratic state founded on values of multiparty system of government that ensure accountability, responsiveness and openness.[1] It is a state that is meant to operate on the principles of good governance. According to International Fund for Agricultural Development (IFAD), governance is the manner in which power is exercised in the management of the country’s economic and social resources for development.[2] Good governance as a concept exists when certain elements are attained in the governance model. The main elements include accountability, transparency, and the rule of law, people’s participation and responsiveness.[3] These are the elements the South African constitutional democracy aspires to achieve. One of the elements of good governance, as mentioned, is accountability and is the subject of this paper.
There is an assertion that South Africa has a highly regulated system of public accountability that governs the public service and local administration. This paper argues along that assertion; that the South African legal and regulatory framework does provide for better accountability. In that line of argument, the paper explores the concept of accountability and indicates its existence in the South African framework. The second part of the paper considers the definition of accountability where as the third part discusses the necessary elements for an accountability relationship. In the fourth part, the paper discusses in some detail how accountability has been provided for in South African constitution, legislation and policy framework. The last part of the paper discusses, in brief, the obstacles of accountability in South Africa.
2.  DEFINITION AND CONCEPT OF ACCOUNTABILITY
Accountability, like any other term or concept, has been defined differently by different scholars and organisations from differing perspectives. The English Advanced Learner’s Dictionary [4]states that to be accountable is to be responsible for your decisions or actions and expected to explain them when you are asked to do so., particularly to somebody. Peruzzotti states that a government is accountable when there are institutional conditions that forces public officials to inform about, justify, and to be eventually sanctioned for their decisions.[5] According to Bovens, accountability is a social relationship in which an actor feels an obligation to explain or justify his or her conduct to some significant other.[6] In this relationship there are two variables; the accountor or actor who could be an individual or agency, and the significant other also known as the accounting forum or accountee, which may be a specific person, agency or entity, including the general public. Thus, the concept of accountability brings in a relationship which entails an obligation to a person, body or entity to be responsible, to account, and to justify actions to other person, entities agencies or to the general public.
3   KEY ELEMENTS OF ACCOUNTABILITY
Accountability as a concept to exist, there are certain factors that must exist. This, of course, can be discerned from the definition of accountability as above given. There are different approaches and perspectives scholars have used to understand the elements of accountability as a social concept. For the purposes of this paper, elements of accountability are considered in the perspective of Enrique Perruzzotti, Staffan I Lindberg and Mark Bovens.
3.1 Enrique Perrruzzotti
In explaining the concept of accountability, Perruzzotti states that the notion of accountability involves a specific form of exchange between two autonomous actors characterised by three properties. First, it entails some control by someone who is not part of the body being held accountable. Secondly, it is basically an interaction of two ends; those demanding accountability and those being held accountable.  Lastly, it is a structured asymmetry of power in favour of those demanding accountability.[7] This, however, does not make a clear explanation of the necessary elements of accountability, though it attempts to mention variables.
3.2 Staffan I Lindberg
Lindberg, in explaining the concept of accountability, states that all literature on the subject agree to the view that any form of accountability must have the following characteristic or elements;
i. An agent or institution giving account;
ii. An area, responsibility, authority or domain which is the subject of accountability;
iii. An agent or institution to whom the account is to be given known as the principal;
iv. The right of the principal to require the accounting agent to inform, explain or justify decisions with regard to responsibility or authority;
v. The right of the principal to sanction the accounting agency if it fails to inform, explain of justify its decisions as required.[8]
These, according to Lindberg, are the necessary elements of accountability or an accountability relationship.
3.3 Mark Bovens
Boven provides a better explanation of the elements of accountability which, to a larger extent, is in agreement with Lindberg. Boven states that at least three elements must exist. First the actor or accounting agency must feel obliged to inform or account to the significant other or to the forum his or its conduct by providing data on performance, outcomes or procedures. Secondly, the information or account must lead to a debate or interrogative phase where the conduct, information or data is questioned by the forum or significant other. Thirdly, the significant other or forum forms a judgment of the actor’s conduct, approves or annuls the account, condemns the behavior or denounces the decision. This may be in a form of a sanction of the accountor. Thus, in general, those are the three elements of accountability.[9]
Bovens has further expounded the elements in relation to public accountability, as opposed to accountability per se. To qualify as public accountability, he sates that the accountability relationship must have five elements; (i) public accessibility of the account or that it must be open ; (ii) an explanation or justification of the conduct; (ii) the explanation has to be directed at a specific forum and must not be random; (iv) there must be an obligation to provide that account or information; and (v) there must be possibility of debate, judgment or imposition of a sanction, whether formal or informal.[10]
From the three perspectives of elements of accountability it can be seen that certain elements are generally necessary for accountability to exist. These, in short are public accessible information, explanations and justifications, specific person or entity to explain to or justify, an obligation to so provide information, explain and justify, and room for debate, judgment or sanction. These are what can be surmised as elements of public accountability. The discussion herein, since the accountability in question is that of public officers, will be based on the said five elements. The part below discusses accountability and its elements in South African law and regulations.
4 MANIFESTATIONS OF THE VALUES OF ACCOUNTABILITY IN SOUTH AFRICAN LAW AND POLICY
As stated above, the South African Constitution envisages a democratic system that is accountable, among other values. But as the assertion is that the legal and regulatory framework does adequately provide for accountability, the question is how and where has it been so provided? This part of the paper answers that question by tracing the position of accountability and its elements in the South African legal and policy framework. This will be considered particularly in terms of the Constitution, legislation and policy or guidelines.
4.1 Accountability in the Constitution
The Constitution of South Africa, 1996[11] lay down the foundation of accountability in administration. First, the Constitution provides that South Africa is a state founded on values one of which is to ensure accountability, responsiveness and openness.[12] Secondly, the Constitution provides for principles of cooperative government in chapter 3 and amongst the principles to be adhered to by all spheres of government is to provide for effective, transparent, accountable and coherent government.[13] Thus apart from being among the founding principles of the state of South Africa, accountability also features within the principles of co-operative government.
Accountability, also considered in terms of its elements as discussed above, manifest itself in the Constitution in other provisions. The Constitution provides for political accountability of the president and cabinet to parliament. The national assembly chooses the president, provides a national forum for public consideration of issues as well as scrutinises and oversees executive action.[14]  Related to that is the fact that the President, deputy president and all ministers, who all constitutes the cabinet, are accountable collectively and individually to parliament for exercise of their powers and the performance of their functions.[15] In that regard, members of the cabinet are obliged to provide parliament with full and regular reports concerning matters under their control.[16] In addition to the above, the national assembly has the power to remove the cabinet as a whole or in exclusion of the president by vote of no confidence. [17]
The provisions above manifest accountability with its elements as discussed above in the national political setup.  First, there is a two way relationship between the president and the cabinet, on the one hand, and parliament or national assembly on the other hand. The president and cabinet are obliged to account and report to parliament or national assembly. Parliament or national assembly forms a forum of consideration of action and conduct, can make judgment or resolutions, and can sanction by way of no confidence or otherwise. The elements of accountability do therefore exist in the constitutional accountability of the president and cabinet to the legislature.  A similar scenario is obtaining in case of provincial government.  The provincial legislature is commanded to provide for accountability of executive organs.[18] It appoints the premier who heads the executive council, and the premier and the executive council are accountable, collectively and individually, to the provincial legislature for exercise of their powers and performance of their functions.[19] Similarly, the premier and the executive council must provide full and regular reports to the provincial legislature, [20]and may be removed by vote of no confidence by the provincial legislature.[21]
In the local government sphere, the Constitution has also made some provisions with regard to accountability but with a different format. In that respect the Constitution only provides that the objectives of local government includes providing for democratic and accountable government.[22]The difference in nature of provision for the accountability of the executive to the legislature at local government is the fact that both executive and legislative functions of local government are vested in the councils.
In addition to the above specific constitutional requirements, the legislative as well as executive organs of all spheres of government are made accountable to the electorate through regular elections and are obliged to provide information and account to the public. They are commanded to be transparent as well as answerable through public participation and communication mechanism that are available in the legal and policy framework.
The Constitution also provides for administrative accountability in a number of instances. Among them is through the establishment of institutions supporting constitutional democracy under chapter 9. These include the office of the Auditor General of South Africa (AGSA) whose function is to audit and report on the accounts, financial statements, and financial management of all national state departments, administration agencies as well as municipalities.[23] This gives an obligation to all those institutions to report and account as well as explain and justify their decisions in utilizing financial resources. Further, the accounting organs are judged based on the report, information or account provided, which may be followed with necessary sanctions. Apart from the AGSA, the Constitution also establishes the Public Service Commission (PSC) as an independent body with power to promote the values set out in the Constitution in relation to public service, to investigate, monitor and evaluate the organisation and administration, among others, of the public service.[24]  The operations and mandate of the commission, the principles enunciated under section 195 of the Constitution which are to be promoted by the commission , and the code of conduct developed thereafter, among other things, make public officers responsible and accountable for their actions.
Lastly, the Constitution has provided for better accountability in financial matters of all state departments and organs by strictly requiring all budgets from all spheres of government to promote transparency, accountability and effective management.[25]Additionally, the Constitution provides for the establishment of the national treasury which is vested with the responsibility of enforcing those prescribed measures of transparency, accountability and expenditure controls in all spheres of government.[26] Thus, these are some of the instances the Constitution has provided for accountability as discussed above. As will be seen in the proceeding discussion, legislation and policy providing for accountability has emanated from the constitutional framework. 
4.2 Accountability in legislation and policy.
Legislation and policy have also provided for accountability in South Africa putting to practice the dictates of the Constitution. The foremost is the Public Audit Act which was enacted under the authorization of section 188(4) of the Constitution.[27] The Act provides for the same functions of the AGSA under section 4(1) as already provided in the Constitution and as above discussed. Secondly, accountability is provided in legislation through the Public Finance Management Act.[28] This act applies to national and provincial spheres of government and expressly states that its objective is to secure transparency, accountability and sound management of the revenue, expenditure and assets of relevant institutions.[29] The Act has many provisions requiring accountability, including requiring sound budgeting processes and reporting thereof under chapter 4, as well as providing for disciplinary and criminal proceeding for misconducts and offences, respectively, under chapter 10. It provides for accounting standards, procedures for holding public officers answerable, and necessary sanctions in case of contravention. The sanctions include legal proceeding which is a legal accountability to the responsible officers.
Further from the above, accountability has been provided through the Prevention and Combating of Corrupt Activities Act (PCCAA).[30] This act also brings in legal accountability to individuals who misuse their positions in office for personal gains. This applies nationally. At the local; level there are also a number of legislation providing for accountability. The Municipal Systems Act has provided for performance management, for monitoring and review of performance as well as a reporting system.[31] The Municipal Finance Management Act has also made strict provisions for accountability such as budgeting processes and their requirements in chapter 4, reporting obligations under chapter 8, financial reporting and auditing requirements under chapter 12, and many similar provisions. These provisions provide for the elements of accountability, including possible sanctions if the perpetrator is found wrong. A number of regulations have been made under these Acts, including policies which have been guiding government action and strategy.
5   OBSTACLES OF ACCOUNTABILITY
The existence of stringent regulations of accountability in the framework does not go without challenges. Key amongst the challenges is the lack of political will which is linked to fraud and corruption, poor communication and accountability relationship with the community, and lack of capacity. These challenges are briefly discussed below in that order.
5.1 Lack of political will linked to fraud and corruption
The main challenge of achieving better accountability has been lack of political will. This is linked to fraud and corruption because the system has ably provided for mechanisms of reporting and monitoring. In most of the cases the institutions, bodies or organs established by the system manage to report the abuse, misuse or waste or fruitless use of resources but no meaningful remedial or sanctioning action is taken. This is particularly on the reason that the implicated individuals have connection to some political leaders. This defeats the whole system and rationale behind the mechanisms of accountability. In some cases no action is at all taken in reported misconducts. For instance, although the MFMA provides liability to the municipal manager who is referred to as the accounting officer if he deliberately or grossly negligently fails to take reasonable steps to prevent unauthorized, irregular, fruitless and wasteful expenditure, [32]and despite audit reports indicating huge amounts of unauthorized and irregular expenditure, action against municipal managers is rarely taken. Similar instances exist in cases of violation of then PFMA at national and provincial level and also in relation to PCCAA. That poses a big challenge to holding the responsible individuals to account and defeats the progress in achieving accountability as envisaged by the law and policy.
5.2 Poor communication and accountability relationship with the community.
Apart from the above, poor communication and accountability relationship with the community is another challenge to achieving sound accountability. This is particularly so in the national and provincial spheres of government The provincial government does not have its own robust revenue raising powers as it relies for most of its programmes on grants from nationally raised revenue.  This minimizes the public diligence and watchfulness and consequently diminishes accountability relationship between the government and the governed.  This is contrary to what is obtaining at the local level where the community feels the urge to hold their local governments accountable in lieu of the rates and charges they pay. This creates a strong downward accountability relationship between the community and the government and is conducive for better accountability. At national level the scenario is no better than the provincial level. The accountability relationship is not direct and strong as in the local government case. As to accountability to the community, the most strong accountability tool available is the regular elections that take place on 5 year intervals. The accountability is also perceived to be through their representatives in national assembly.
5.3 Lack of capacity
Another persistent problem that is making effective accountability not to be achieved is lack of capacity of relevant individuals and officials. At national level, since adopting democratic politics, there has been a challenge to balance the need of skilled personnel and the available human resource. This has been so due to the fact that most of the coloured and black nationals were marginalised during the apartheid era and the after effects are still having an impact despite efforts to balance the situation. At provincial level there is a similar problem to the extent that a study undertaken by the Department of Cooperative Governance indicated that most personnel do not possess the required skill and knowledge to fulfill their mandate.[33] At local government as well the problem of poor human resources exists and the turnaround strategy paper[34] and the Good Governance Learning Network submission of 2007 also admit the challenge.[35] The accounting and reporting standards provided for in the framework needs special skills to be properly implemented, which skills have not been matching with the requirements. However, specific deliberate efforts are being taken, such as high minimum qualification prescription for senior managers. This has been a challenge in attaining accountability as envisaged by the framework.
6   CONCLUSION
The South African is founded on principles of a democratic state based on principles of good governance one which is to provide for an accountable and responsive government. Accountability requires answerability of public officers for their decisions and has highly been provided for in the Constitution and legislation as well as policy. There is both political accountability, administrative accountability and legal accountability within the system. Better reporting systems have been provided in use of financial resources of the state as well as processes and remedies. That, however, is with challenges in implementation which includes lack of political will linked to corrupt conduct, poor communication with communities and lack of capacity among others.






BIBLIOGRAPHY
Legal Instruments and regulations
Constitution of the Republic of South Africa Act No 108 of 1996
Public Audit Act No 25 of 2004.

 Public Finance Management Act No 1 of 1999.

Local Government: Municipal Finance Management Act no 56 of 2003.
Local Government: Municipal Systems Act No 32 of 2000.
Prevention and Combating of Corrupt Activities Act No 12 of 2004.


Books and Journal articles

Bovens M Public Accountability in Oxford Handbook of Public Management and Public Accountability 2005 Oxford

Hornby A S Oxford Advanced Lerner’s Dictionary of Current English 8th Edition Oxford University Press Oxford 2010.

International Fund for Agriculture and Development Good Governance: An overview Executive Board Document No 35370 for 67th session 1999 http://www.ifad.org/gbdocs/eb/67/e/EB-99-67-INF-4.pdf Accessed 05/09/2012)

Lindberg SI Accountability: The Core Concepts and its Subtypes in Africa Power & Politics Working paper No 1 2009 Overseas Development Institute London. http://www.dfid.gov.uk/r4d/PDF/Outputs/APPP/APPP-WP1.pdf (accessed 05/09/2012)

Peruzzotti E The Working of Social Accountability: Context and Conditions Paper prepared for the workshop “Generating Genuine Demand with Social Accountability Mechanisms Paris 2007
Policy and Discussion documents

African National Congress Legislative and Governance Subcommittee Provincial and Local Government Review Discussion Paper 2010 http://www.anc.org.za/docs/discus/2010/summitz.pdf (accessed 11/09/2012).

Department of Cooperative Governance & Traditional Affairs Local Government Turnaround Strategy 2009 http://www.info.gov.za/view/DownloadFileAction?id=118277 (accessed 11/09/2012).
[1]
 Good Governance Learning Network Submission to the Department of Provincial and Local Government on the Review of the White Paper on Local Government 2007 www.ggln.org.za/publications/submissions/...submission.../file (accessed 11/09/2012)


[1] Section 1(d) Of the Constitution of the Republic of South Africa 1996.
[2] International Fund for Agriculture and Development Good Governance: An overview Executive Board Document No 35370 for 67th session 1999 1.
[3] IFAD Good Governance: an Overview  3
[4] Hornby A S Oxford Advanced Lerner’s Dictionary of Current English 8th Edition 2010.
[5] Peruzzotti E The Working of Social Accountability: Context and Conditions Paper prepared for the workshop “Generating Genuine Demand with Social Accountability Mechanisms Paris 2007 3.
[6] Bovens M Public Accountability in Oxford Handbook of Public Management and Public Accountability 2005 184.
[7]  Perruzzotti E Working of Social Accountability 2007 3.
[8] Lindberg SI Accountability: The Core Concepts and its Subtypes in Africa Power & Politics Working paper No 1 2009 8.
[9] Bovens M Public Accountability 2005 185.
[10] Bovens M Public Accountability 2005 185.
[11] Constitution of the Republic of South Africa1996.
[12] Section 1(d) of the Constitution.
[13] Section 41(1) (c) of the Constitution.
[14] Section 42 (3) of the Constitution.
[15] Section 92 (2) of the Constitution.
[16] Section 92(3) (b) of the Constitution.
[17] Section 102 of the Constitution.
[18] Section 114(2) (a) of the Constitution.
[19] Section 133(2) of the Constitution.
[20] Section 133(3) (b) of the Constitution.
[21] Section 141 of the Constitution.
[22] Section 152(10 (a) of the Constitution.
[23] Section 188(1) of the Constitution.
[24] Section 196 of the Constitution.
[25] Section 215(1) of the Constitution.
[26] Section 216 of the Constitution.
[27] Public Audit Act No 25 of 2004.
[28] Act No 1 of 1999.
[29] Section 2 0f the Public Finance Management act No 1 of 1999.
[30] No 12 of 2004.
[31] Chapter 6 of the Local Government: Municipal Systems Act No 32 of 2000.
[32] Section 173 (1) (a) (iii) of MFMA.
[33] African National Congress  Legislative and Governance Subcommittee Provincial and Local Government Review Discussion Paper 2010 12.
[34] Department of Cooperative Governance & Traditional Affairs Local Government Turnaround Strategy 2009 18.
[35] Good Governance Learning Network Submission to the Department Of Provincial and Local Government on the Review of the White Paper on Local Government 2007 14.

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