How to Exact Accountability (cont.)
The South African Constitution contains a justiciable Bill of Rights which guarantees dignity, equality and a range of freedoms and rights to all who live in our lovely land. The State must "respect, protect, promote and fulfill the rights in the Bill of Rights". Not only that, the Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of state whether at national, provincial or local level.
The Bill of Rights is a cornerstone of our new democratic order. If the rights contained in it are not claimed by the people they will wither and die. A strong civil society, ever vigilant in the protection of its rights and freedoms is needed in order to make a success of the national accord which underpins the new constitutional order. It is worth noting that the representatives of the vast majority of the people of South Africa were willing to accept the new dispensation and to allow the peaceful transition from the old sovereign parliament to the constitutional democracy we now enjoy.
Two of the foundational values of this new way of running the country are accountability and responsiveness to the needs of the people. The latter requires no explanation, but the notion of accountability does bear some examination. It may be defined in general terms as the obligation of those with power or authority to explain their performance and to justify their decisions. So the process of exacting accountability from the authorities at all levels in society is one according to which a culture of claiming justification for decisions taken and explanations for conduct carried out or omitted are required.
How then are ordinary people able to involve themselves in the process of holding the powerful to account? The Constitution answers this question in Chapter Nine. This chapter is devoted to the creation of a series of institutions that strengthen constitutional democracy. They are themselves accountable to the National Assembly to which they report on their activities annually. The Public Protector is the most important of these institutions. He or she is appointed for seven years to investigate any alleged improper or prejudicial conduct of state affairs. In other countries an Ombudsman or Ombud fulfills this function. The Public Protector has offices in all main centres to receive complaints from the public regarding the conduct of state affairs at local, provincial or national level. The Human Rights Commission is there to promote respect for human rights, and further commissions concerned with the rights of cultural, religious and linguistic communities, gender rights, and electoral affairs also exist with their respective spheres of influence. Our auditor-general is tasked with seeing to it that the accounts of public institutions are in order and an independent authority to regulate broadcasting also exists.
If no one complains to these institutions about worrying failures in service delivery, violations of rights or improper conduct of public affairs, there is very little basis for complaining about any failure to attend to shortcomings. Some of our bigger municipalities, including Cape Town, have an ombud office of their own to deal with complaints about failures in service delivery and problems at municipal level. The provinces, like the national level of government, have public representatives to be responsive to the needs of the people. If the people do not bother to make their needs known, they have only themselves to blame when improvement is slow in coming.
It is not helpful to adopt a defeatist attitude when faced with a situation in which failure or shortcoming on the part of government is apparent. Appropriately drawing attention to the problem is a necessary first step to solving it.
In the Police there is an Independent Complaints Directorate to field complaints about wrongdoing on the part of police personnel. A city councilor was heard phoning a talk show host recently to complain that two allegedly drunk off duty policemen were assaulting a man and their commander was refusing to do anything about it on the spurious grounds that they were off duty! The councilor ought to have know that the appropriate place to take the complaint would be to the Provincial Police Commissioner, and if no satisfaction was forthcoming from that quarter, to the Independent Complaints Directorate of the police. Instead he wanted the talk show host to take the matter up for him. Although talk show hosts are by and large very helpful and sympathetic people, the knowledge of who to complain to in appropriate circumstances is a liberating and empowering way to exact accountability.
Here are some useful telephone numbers to cut out and stick on the fridge for future reference:
- To arrange a discussion with a member of Parliament 021 403 2769
- Police emergencies 10111 or 10177
- Any other emergency 107
- Child line 0800 055555
- Ombudsman Cape Town 021 4005486
- Human Rights Commission Cape Town 021 426 2277
- Public Protector 021 423 8644
- Gender Commission 021 4264080
- Auditor General 021 4656539
- Cultural, religious and linguistic communities Commission 011 339 1775
- Office of the Provincial Commissioner of Police 021 467 6000.
It should also be borne in mind that there are many non-governmental organizations active in the various fields of activity in which failures and shortcomings are likely to arise. If the initial complaint or query is not satisfactorily dealt with they can assist, as can the Public Protector, whose job it is to take appropriate remedial action in circumstances in which the conduct of state affairs at all levels is alleged or suspected to be improper, or to result in any impropriety or prejudice.
When all else fails, consulting a lawyer is the appropriate next step in exacting accountability; matters of public interest can be dealt with for free through the pro bono system run by the Law Society (telephone 021 443 6700)
Paul Hoffman SC
Institute for Accountability in Southern Africa