Layers of Accountability (cont.)
It was during the discussion of accountability on the final day of the conference that the benefit of the input of the experts became most apparent. The role of the NGO sector in relation to holding errant governments to account for poor policymaking and transgressions was examined with a view to improving the impact and quality of input from this sector across the continent. This will help ensure that good governance becomes the rule in Africa, rather than the exception. It was noted that the "big man" authoritarian aspects of the past have been consigned to history and that democracy is "breaking out" all over the continent. There is however much work to be done when it comes to the issue of holding governments to account for their actions and, all too often, for their inaction. Only Mauritius makes it into the world’s top thirty, South Africa lags at position 31 – classified as a "flawed democracy".
Africa’s acceptance of the notion of constitutionalism means that its governments can be measured by their adherence to the criteria for its success. Firstly, are there adequate limits, the so called "checks and balances", on the exercise of power by government? Secondly, does the system in each country enjoy popular legitimacy? Finally is a culture of human and peoples’ rights present? These are some of the important topics investigated during the regular inspections and assessments which are the business of the African Peer Review Mechanism (APRM) which is a part of the NEPAD vision that has been accepted by the governments of about half of the countries in Africa. It is a big step along the road to accountability to be prepared to submit the policies, laws and the general state of affairs in a country to the scrutiny of a group of eminent foreign persons. The truth is that the reports generated in the APRM process do not as yet have "teeth", the opinions expressed therein do not have binding effect. They are rather in the nature of advisory material or the product of peer pressure. This is understandable when regard is had to the fact that so many countries have struggled long and hard for their independence; they are not about to surrender their sovereignty to a group of strangers, however eminent they may be.
This does not however provide any escape from the requirements of accountability. The holding of governments to account was a major theme of the conference. Most African constitutions do make provision for accountability whether expressly or by necessary implication. It is the process involved in invoking the notion that gave rise to interesting debate among the delegates on topics as diverse as keeping elephants out of rural rice fields in Uganda and corruption in most places.
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 transparency, 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 sensitization 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. Declarations of rights and orders of Court directing that the necessary be done are available to determined litigants.
It is vital that any person or organization 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 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 and our continent.
Paul Hoffman SC
20 November, 2008.