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
www.sasanet.org/documents/Curriculum/.../E%20Peruzzotti.doc
(accessed o4/09/2012)
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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