Current Affairs
Accountability
Accountability can make a difference
What do a multi-billion rand bill to pay for "police misconduct", unpaid social security grants, overcrowded prisons, the crumbling schools system and the slow delivery of state sponsored housing for the millions of shack dwellers in the metropolitan areas have in common? Why is state health care in a mess? How does it happen that, all too often, funds voted by parliament to departments of state, provinces and municipalities go unspent and have to be refunded to the Treasury?Ensuring free and fair elections.
Anyone who went anywhere near a polling station last weekend would have seen the banner advertising the presence of the Independent Electoral Commission (IEC). It reads: “Ensuring free and fair elections.” This is what section 190 of the Constitution requires the IEC to do in addition to managing elections and declaring the results of those elections. These constitutional obligations are fleshed out in the Electoral Act and the regulations promulgated under it. The banner reflects a positive obligation which has to be fulfilled if the promise of universal suffrage, for which so many fought so long and sacrificed so courageously is to be realized in our new democratic order.Let’s Tackle the Scourge of Crime Properly.
The frank acknowledgement by the Deputy Minister of Justice, Johnny de Lange, that the criminal justice system is dysfunctional is a welcome development from the point of view of ordinary people who have to cope daily with the consequences of that dysfunction. It is also encouraging that the government is now turning to science and technology to address the scourge of rampant criminality which all too often goes unreported, undetected and unpunished. It is simply not sustainable to continue as we have as a nation. The courage it took to admit to the sorry state of affairs to which we have sunk must therefore be saluted.Qunta's blind spot
While I hold no brief for COPE, or the "white right", it is necessary to comment on Christine Qunta's piece on affirmative action (CT 15/1).The nation’s shattered hopes and brittle resilience: a constitutional assessment of that speech.
Last year it was "business unusual" a more than twenty point priority list for the future which went unmentioned this year. Instead, a long and one-eyed history lecture and "business as usual" were offered to the waiting nation by a President clearly acting as seat warmer for his successor. A President who wore his Luthuli House deployee hat at all times. The election hustings rather than the state of the nation are what the speech to Parliament under the theme of "hope and resilience" actually focused on in a manner that is alarmingly lacking in responsiveness and accountability.Carl Niehaus, Gwede Mantashe and Cronyism
It is ineffably sad that a person as apparently earnest and committed as Carl Niehaus has been to those causes he has espoused over the years should find himself in the mess on which his detractors are now feeding. Yes, he may well have a less than comfortable relationship with money, have done criminal and stupid things in the past, and be less than suitable for the work he does because he “over-promises and under-delivers”, as his former colleagues are quoted as saying. None of that explains the current pickle in which he finds himself as a scarred and self-immolatory survivor of the struggles of his life.Responsibility for reporting Niehaus forgery could extend beyond Mashatile
Jack Bloom, Democratic Alliance leader in the Gauteng Legislature, has suggested that those implicated for not reporting the Carl Niehaus forgery could extend beyond Gauteng Premier Paul Mashatile to include all executive members of the legislature who had any knowledge of wrongdoing and said nothing.How to Exact Accountability
At a recent Full Circle whisky tasting evening, at which I was responsible for providing the supporting programme, a thoughtful member of my captive audience asked: "What can ordinary people do to improve the service delivery situation?" This sparked a request from the editor that I burst into print on what is really a most important question.Accountability in the Western Cape Department of Health
An Ethical Framework for Decision-making
The value placed on accountability recognizes that as an institution, we are "responsible for the commitments we make" and "accountable to our communities for human and fiscal resources entrusted to us."An important part of being publicly accountable is having ethical and effective decision-making processes. The Western Cape has adopted an ethical framework called 'accountability for reasonableness (A4R)' to help decision-makers throughout the organization set priorities and make decisions that are legitimate and fair.
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The Dawning of the Age of Responsibility.
When Barack Obama took office as President of the United States he made a speech ushering in what he called a new "era of responsibility" – and not a moment too soon. His lead has been followed by the World Bank’s President, Robert Zoellick, who has waxed eloquent about the choices now facing the global economy – either an age of responsibility or an age of reversal – is how he put it.Layers of Accountability
The state of governance in Africa came under penetrating scrutiny at a SAIIA (SA Institute of International Affairs) conference held at Boksburg during November 2008. Delegates from across the continent and beyond unpacked the African Peer Review Mechanism and considered the current state of constitutionalism on the basis of their experience and research. Most delegates were from the NGO sector with a good sprinkling of international academics and researchers present to balance the dialogue which took place in good spirit. 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.Affirmative action: redressing or creating imbalances?
The title of this lecture was inspired by the challenges being experienced in giving constitutionally compliant content to the requirements of section 9 (2) of the Bill of Rights. The ideal of "redressing the imbalances of the past" is often given as the rationale for measures which are aimed, however inaccurately, at protecting and advancing those disadvantaged by unfair discrimination. These measures include legislation, policies, codes of practice and charters. The question is whether the measures at present in place are creating new imbalances which may adversely affect our future as a nation rather than protecting and advancing all those disadvantaged by unfair discrimination. The motivation for raising so thorny an issue is to uphold the Constitution and to constructively advance the laudable national goals it sets. A nation capable of actually living the values of its hard won and carefully crafted Constitution is a nation in which justice and peace flourish.Democracy and Accountability: Balancing Majority Rule and Minority Rights
The paper identifies accountability as the essential ingredient required to make the ideals of constitutionalism a reality. A definition is offered in which three tests for constitutionalism are set out. These are, firstly, limitations on the exercise of power; secondly, legitimacy in the eyes of the people; and, thirdly, respect for human and people’s rights. These three components of constitutionalism are examined against the political backdrop of post-liberation societies in which people’s struggle for freedom becomes subsumed by the infighting that occurs within governing elites or liberation movements. This is to the detriment of the realisation of the values of dignity, equality and freedom that underpin the accepted constitutional dispensations, which are given lip service by politicians, but are not implemented in a manner responsive to the needs of the people.- download >
The Dalai Lama and South Africa’s attitude to human rights
How ironic that news of the refusal to give the Dalai Lama a visa to participate in the peace conference organized by the "soccer family" of South Africa around the Mandela Soccer Challenge should come as the country celebrates Human Rights Day. The circumstances of the refusal, and cabinet’s exact role in it, are not entirely clear. Conflicting reasons are given for the decision to exclude the Dalai Lama from the peace conference to which he was invited last November by the three living Nobel Peace Prize winners in South Africa, Archbishop Emeritus Tutu and former Presidents Mandela and De Klerk. Their invitation followed upon an earlier invitation signed by all of them and the current President, Kgalema Motlanthe, inviting the persons on the Norwegian Nobel Peace Committee to join in the event. Rather unhelpfully, the Minister of Foreign Affairs, Nkosasana Zuma, suggests that politics and sport should be kept apart. How retrograde, and how inconsistent with the invitation signed by the President, this echoes Piet Koornhof and John Vorster before him.What's it to be: constitutionalism or populist revolution?
At the very core of the national accord, which saw the sovereign parliament of the apartheid era replaced by our thoroughly and painstakingly negotiated constitutional democracy, is the idea that the Constitution is the supreme law.Why development aid has not eased poverty
Development aid has an inadequate impact because development ideology is based on four fundamentally flawed assumptions:- the well-rehearsed doctrine that developing countries' problems are entirely internal
- that developed countries are an example to be globally emulated
- that the role of developed countries in promoting development is defined by altruism
- that the poor do not have the potential to improve their own lives significantly
First published on the web by Cape Times on April 29, 2009
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The Scorpions, the Constitution and the Rule of Law
The controversial National Prosecuting Authority Amendment Act and the South African Police Services Amendment Act bring about respectively the demise of Directorate of Special Operation (DSO) or the Scorpions, as they are known to the public, and the creation of a new unit to deal with, inter alia, organised crime to replace the Scorpions.
This legislation has proved to be highly politically divisive, since the ANC perceived the Scorpions to be notorious because of its relentless pursuit and prosecution of high profile members of the ANC.
The fight to retain the Scorpions is not over, since the constitutionality of the legislation, is to be challenged in the Cape High Court.
Countering Ken Owen on the state of the nation
This is an attempt to ameliorate or at least balance the views expressed by Ken Owen, former editor of the Sunday Times, in the May 2009 edition of Noseweek. One does so with a sense of trepidation as it is difficult to disagree with so acute and experienced a political commentator.
It is beyond doubt that it is indeed necessary to cherish and uphold the Constitution in these troubled times. The battles of the twenty first century will be waged in our democratic multi-party democracy, our elected Parliament, in the Courts and in the boardrooms of business and civil society in the nation. This is what constitutionalism is all about.
Accountability and Mobility
In the corporate and official policy making contexts accountability means that those who take decisions and actions should be able to justify the former and explain the latter. Policy makers have to ensure that their conduct is consistent with the Constitution.
Mobility on the other hand is all about access. Access to a place of work, a family abode, an educational facility, a place of worship or of play, access to services such as health care, food distribution and retail outlets are all encompassed by using one’s mobility to "get there" and back safely.
In June 2001 a young engineering student from Fish Hoek, Juan van Minnen, was fatally wounded in a knife attack on him while traveling on a commuter train as it pulled into Wynberg station. The death of Juan and the communities outrage at the lack of accountability and indifference of the rail and police authorities sparked the formation of the Rail Commuters' Action Group (RCAG).
Of Baboons and Men; passing the buck is offside
A Simon’s Town resident recently asked for an urgent meeting on the issues surrounding the clash between marauding baboons and human inhabitants/visitors to the Southern Peninsula. The problem is in essence one of competition for scarce resources.
The City of Cape Town, the Table Mountain National Park (TMNP) personnel and Cape Nature have all applied their minds to the problems presented without actually coming up with a solution that is acceptable to all.
The baboon troops that have colonized surburbia are increasingly bold and fearless in their interaction with humans in the neighbourhoods in which humans have attempted to deal with the invasion in a humane and non-confrontational manner. There is a reasonable apprehension that it is only a matter of time before a child is seriously injured or killed by a marauding baboon.
The Constitution and Quotas
The sparks that have been flying as a result of the decision of the new Western Cape Premier to appoint an all male mainly "white" cabinet to help her run her province reasonably and accountably.
It is instructive to compare the composition of the provincial cabinets in other provinces with that of the Western Cape. Only two white women and no white men at all feature in the other eight provinces.
The foundational values of the Constitution include non-racism and non-sexism. This means that race and sex ought not to be used as a basis for discrimination. Section 9 spells it out: nobody, whether state or individual may unfairly discriminate against anyone on various grounds including race and sex. Discrimination is presumed to be unfair.
Isn’t it time to name and shame?
In 2004, our National Treasury established a register to name tender defaulters. The purpose of the Register is in effect to alert the public sector to the identities of persons or enterprises convicted of corrupt activities in relation to contracts or tendering and in certain circumstances to prevent or deter these persons or entities from supplying their goods or services to government for a period of time. The information on the Register is also available to the public at large and thus serves as a warning to private business as well.
The legislation is well thought through and makes provision for a much needed procurement control tool for both government and the private sector – why then is the register after nearly 5 years still standing empty and whose responsibility is this?
Disgruntled doctors had little alternative when it came to airing their grievances
The Department of Health exists to provide the constitutional right of all citizens to basic health care as an essential service.
Clearly, the doctors, falling under the Department of Health, have been long suffering in their appeals to make their employer aware of the operational requirements of an essential service and also the need to comply with the legislated requirements regarding working conditions - without success.
Within the Health Department, the employment relationship has clearly become dysfunctional. The doctors, as one party to the employment relationship, have reached the stage where they feel that the integrity of professional health-care standards is at risk because of the non-performance of their employer. Consequently, they are left with no alternative but to use whatever action is available to highlight the state of the delivery of health care as an essential service.
Doctors, Hippocrates and Hypocrisy
The cacophony surrounding the wage negotiations in the public health sector has generated more heat than light.
Any strike in the essential services arena is illegal. It is generally regarded to be in the public interest that essential services for the nation continue irrespective of disputes in negotiations over the conditions of service of those who provide the essential services. Other mechanisms exist when negotiations do not produce the desired result. The CCMA can be asked to act as facilitator, arbitration can be resorted to and, when all else fails, those dissatisfied with their lot are free to resign and seek greener pastures elsewhere.
The doctors who have been protesting and picketing know all this, yet they have persisted, in the face of strong criticisms, to demand the "cash injection" treatment which they say the public health sector requires.
Our public hospitals have unhappily but increasingly become places where ordinary folk go to die rather than for healing treatment and cures for their ailments.
The doctors know all this too. They are self-interested in improving their own lot, but they are also expressing concern, as they should do, about the state of the public health system.
Public health has long been neglected by a government more interested in the acquisition of arms with which to fight imaginary foes and the creation of a "gravy train" on which a junior parliamentarian gets paid six times as much as a junior doctor.
The Death of Dingaan Nyathi was not in vain
The famous Nyathi case, in which the Constitutional Court struck down as unconstitutional section 3 of the State Liability Act of 1957, as amended in 1993, was back in Court this week.
It is the prohibition against execution and attachment in cases against organs of state that has been found to be unconstitutional.
The state has been directed to clean up its act concerning unsatisfied final judgements obtained against it and remedial legislation has been ordered by the Court.
The public service, whose responsibility it is to pay judgements obtained against the provinces and central government is grievously at fault. The situation with judgments against the state is that there is money available, but no legislated mechanism for getting at it. Accordingly, it would seem that the solution to the problem of unsatisfied judgments is to create a suitable mechanism that will ensure judgments are in fact paid once they are obtained.
This is a contribution to the debate aimed at ensuring that the late Dingaan Nyathi did not die in vain.
Cosatu versus Manuel: the rules of engagement
Cosatu concedes that it is involved in what it describes as "an argument" with Trevor Manuel, the Minister of Planning in the Presidency.
The cause of the trouble is the publication of a green paper aimed at creating new ways of implementing policy better called the Green Paper on National Strategic Planning.
Cosatu sees the green paper (no more than a discussion document) as the open sesame to the creation and promotion of an imperial Prime Minister in the Presidency.
The fear is that the far more junior new Minister of Economic Development, Ebrahim Patel, will be sidelined by the super-ministry of planning to the detriment of the interests of Cosatu and its members.
Accountability and the rule of law
All too often angry and frustrated protesters feel compelled by official inertia or lethargy to take the law into their own hands when expressing their dissatisfaction with the state of affairs in local governance
Very frequently there are genuine and well founded grounds for the protest action taken. The problem is that those seeking to exact accountability resort to extra-legal means to do so and thereby exacerbate rather than improve the situation that raises their ire in the first place.
A working definition of exacting accountability is to require of those in authority that they reasonably explain their performance and properly justify their decisions. If those in authority are unable to satisfactorily do so, then remedial action is usually indicated.
Service delivery protesters and rates boycotters need to understand that unless they employ legally justifiable means to make their points, they become part of the problem and not part of the solution.
Retrenchment – does it mean NO alternative to job cuts?
While it is lamentable that a million jobs in South Africa were lost this year, it is nevertheless commendable that trade union and big business leaders are applying their minds constructively to the manifest problems posed by the ongoing phenomenon of job losses.
The frequent use of the word ‘retrenchment’ is unfortunate – as it is not to be found anywhere in our labour law – because, when used, it immediately directs decision-makers down the narrow path of job cuts. Right now in South Africa the focus needs to be on saving jobs, not regulating their destruction.
Politicians must be made to feel heat over climate responsibility
The outcome of the climate change conference that took place in Copenhagen last month has been officially described by Environmental Affairs Minister Buyelwa Sonjica as "disappointing".
The failure of the representatives of 192 countries to clinch the "real deal" for which Archbishop Desmond Tutu so eloquently pleaded is more than just disappointing — it could be calamitous for the human species.
The Difference between Party and State
Gwede Mantashe’s concerns about our "governance model" in which directors general serve “at the mercy of ministers” are timely and open a necessary debate.
Currently the national parliament is overwhelmingly (65,8%) composed of members of the tripartite alliance. One of the unfortunate by-products of this dominance is that the distinction between party and state, one vital to the proper functioning of all constitutional democracies, tends to become blurred in popular perceptions. The "ANC government" is incorrectly perceived to be the source of state power in this misconceived view. The true source of state power is, of course, the Constitution.
The blurring of the bright lines between party and state through public service "cadre deployment", which the High Court has struck down as illegal, has prejudicial consequences for the promotion of truly democratic values. All South Africans, united in their diversity, ought to owe their first allegiance to their country and only thereafter to the political formations they favour from time to time.
The Deployment of party cadres in the public administration
Gwede Mantashe's concerns about our "governance model" in which directors general serve "at the mercy of ministers" are timely.
President Zuma’s subsequent highlighting of the need to revisit cadre deployment practices shows that Mantashe in not alone and that the need for transformation of outmoded deployment practices is being taken seriously.
Submission to the Ad Hoc Committee of the National Assembly enquiring into progress with service delivery:
Our Republic is founded on the supremacy of the Constitution and the rule of law. Due to the political dominance of the governing alliance, sight is sometimes lost of the difference between party and state in the daily political discourse in the land, and the centre of power is shuffled between Luthuli House and the Cabinet in popular political debates, when, in truth and in law, the Constitution reigns supreme. This is reinforced by its provisions that law or conduct inconsistent with the Constitution is invalid and that the obligations imposed by the Constitution must be fulfilled diligently and without delay. This is the fundamental difference between the old and the new South Africa. Parliament was sovereign in the old system whereas the Constitution enjoys that status now.This means that service delivery has to take place within the parameters set by the Constitution and not according to the whim or fancy of any party political formations.
Professionalism and impartiality are basic requirements for proper, constitutionally compliant public administration. Both are notably absent in the public administration of South Africa. This has led to deterioration of service delivery in a number of key areas and consequently to protest action by the public.
Civil Service Accountability
The Cape Times must be applauded for opening the debate on ‘uncivil servants’, and the ANC congratulated for suggesting that its practice of deployment in the public service needs to change.section 195 of the Constitution lists all the elements required to be specific on 'how' the public administration must be structured and managed, and 'how' public servants should perform to meet the inherent requirements of their jobs.
Sections 195 (1) (d) of the Constitution prescribes that: 'Services must be provided impartially, fairly, equitably and without bias'.
Section 195 1 (f) deals with 'who' is accountable for service delivery.
With all these laws, rules, regulations, codes and practices in place, the question is: how has our service delivery been allowed to deteriorate to the levels experienced today?
As the service delivery levels of all spheres of government and state owned enterprises affect the lives of all South African citizens, we need to build a better understanding of accountability.
For properly appointed public servants to be accountable to the people for their impartiality, fairness, equity and lack of bias, they need much more than a title and the pay cheque that follows – they need authority and freedom to act in the best interests of the people they serve, and thereby provide good service delivery. They ought not to be answerable to any political structures.
Submission to the Ad Hoc Committee on the Organisation and Management of Professionally Qualified and other Persons within the Public Service
An overview responding to the high levels of dissatisfaction shown by professionally qualified individuals in the public administration in South Africa arising from the translation of their existing conditions to the new Occupation Specific Dispensation framework.- download >
Speeding up Effective Service Delivery
The theme chosen by the ANC for the year 2010 is an extension of its tried and trusted "better life for all" formula. This theme concentrates on speeding up effective service delivery as the means by which that elusive better life can be found. The words "a better life" appear in the section of the Constitution that governs our national security which "must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life."When the state of the nation address is broadcast and televised on 11 February, President Jacob Zuma will hopefully expatiate upon this theme and embark upon an examination of the "how" questions that have so bedevilled service delivery.
Dignity, Equality and Freedom
The Bill of Rights is the cornerstone of the new democratic order in South Africa. What it calls the "democratic values of human dignity, equality and freedom" are affirmed by its provisions. The state is enjoined to "respect, protect, promote and fulfil the rights in the Bill of Rights."The Constitutional Court has placed particular emphasis on the right to human dignity. The notion that everyone has inherent dignity and the right to have that dignity respected and protected, marks a complete break with the unfairly discriminatory core of the apartheid past. There is no dignity in grinding poverty, in exclusion and in being discriminated against in any way.
The "Three Cs" impeding service delivery
The work of the National Assembly Committee investigating progress with service delivery has commenced.Three recurring themes emerge so far: rampant corruption, inappropriate and illegal cadre deployment in the public administration and a lack of capacity to actually do what is required to be done to put delivery by competent and committed professional public servants in place in terms of existing laws, policies, plans, structures and systems.
The indications are that corruption is endemic at least in part because it is so easy to get away with it. The chances of getting caught are slim and the prospects of successful prosecution or dismissal even slimmer.
What ordinary people want and why they aren’t getting it
The appointment of an ad hoc Committee of the National Assembly to inquire into progress with service delivery and to make recommendations and an implementable action plan to improve the situation in the country is an opportunity for reflection and action.Three essential questions need to be addressed by the ordinary people of South Africa in this exercise in participatory democracy offered to them by Parliament.
- What do they want,
- why aren’t they getting it, and
- how best can they get what they want?
In the State of the Nation address President Zuma revealed that in recent weeks over 32,000 cases of fraudulent social grant payments totalling in excess of R180 million have been uncovered.
The ten commandments of good tender practice
These commandments are all violated routinely in the essentially corrupt tender processes South Africa is exposed to by its current public administration.Section 195(1) of the Constitution either expressly or by implication prescribes all of these principles. Its peremptory provisions are largely ignored in the new South Africa, to the detriment of the poor and the taxpaying public.
Municipal Parallel Universes
It is beyond dispute that the dysfunction in the municipal sphere of government is endemic. If a municipality as acclaimed as Cape Town can not provide 100,000 of its residents with any form of sanitation, smaller and less well endowed municipalities have bigger problems. The fact that only 32 out of 970 sanitation works in the country are actually functioning satisfactorily says it all.President Zuma himself has complained recently of cynicism, laziness and incompetence in the public administration. These characteristics, which, many observers agree, accurately describe the situation on the ground in municipalities everywhere, strongly suggest that the incompetent and lazy cynics in their employ lack the ability to deliver municipal services in the first place.
This is what has spawned the National Taxpayers Union. It takes the attitude that the municipal employees so accurately described by the President are beyond redemption and it organises alternative ways of ensuring that its affiliates get the services that they need in order the keep their towns and villages from collapsing into free flowing raw sewage running down potholed roads.
