South Africa

Op-Ed: Accountability and the Constitution

By Andries Havenga 13 June 2017

British politician, Lord Anthony St John of Bletso, recently said: “South Africa needs to come to the table. It needs to show transparency; it needs to show good governance; it needs to show accountability.” In this article, we do not discuss accountability from the perspective of the election prerogative of voters to vote new people into government every five years. Rather, we look at the effective and immediate enforcement of accountability from the perspective of immediate responsibility, answerability, trustworthiness and liability of politicians for their actions, decisions and conduct. By ANDRIES HAVENGA.

It appears that the concept of accountability from this perspective is not dealt with in the Constitution.

Democracy cannot simply mean voting every five years

Accountability to the electorate is a crucial ingredient that contributes to meaningful participation in the democratic system. It also breathes legitimacy into the mandate the government receives every five years. If the government is not made accountable by way of the Constitution, then democracy is not distinguishable from a dictatorship or an oligarch of elite politicians.

It is the writer’s submission that specific accountability provisions must be built into the Constitution whereby politicians and senior officials can be forced to resign or can be suspended immediately in the event of questionable conduct of a serious nature. The people of South Africa are entitled to visible and executable accountability.

A cursory reading of the Constitution reveals that the Constitution is flawed in that the accountability of the President and Cabinet is dealt with in a superficial manner as will appear from the following sections of the Constitution:

  1. Removal of President

The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of:

  1. a serious violation of the Constitution or the law;
  2. a serious misconduct; or
  3. inability to perform the functions of office.

It is not clear what the exact grounds for removal are under par b. No mention is made in section 89 of the suspension from office of the incumbent President in certain circumstances.

96. Conduct of Cabinet members and Deputy Ministers

Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.

Members of the Cabinet and Deputy Ministers may not-

  • undertake any other paid work;
  • act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
  • use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person. No consequences for non-compliance of a, b, and c are mentioned and non-compliance must presumably be dealt with under the Code of Conduct for parliamentarians which imposes no threat of criminal sanction for serious misconduct by Members of Parliament.

The elephant in the room is the fact that there no specific provision in the Constitution whereby a President, Minister or Member of Parliament against whom a prima facie case of serious misconduct has been made, can be suspended from office pending a final decision by court or an administrative body.

Bear in mind that the Constitution is a limitation of the government’s power and that it should protect the citizens against the government. The government of the day exists to serve its citizens not vice versa. The Constitution must give more protection to the citizens of the country against elected Members of Parliament, who, once elected, currently have no obligation, other than within political party structure, to be accountable to the people that elected them.

It is suggested that par.19 of Chapter 2 of the Bill of Rights of the Constitution which refers to political rights be amended by adding subparagraph (4):

Par.19 reads as follows:

Political rights:

(1) Every citizen is free to make political choices, which includes the right—

(a) to form a political party;

(b) to participate in the activities of, or recruit members for, a political party;

and (c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

(3) Every adult citizen has the right—

(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret;

and (b) to stand for public office and, if elected, to hold office.

  1. Every citizen has the right to transparent and accountable governance by government.

This right to become enforceable and meaningful, must then be enshrined in an Accountability Act by which the absolute power of politicians is curtailed. The act should be based on the following guidelines:

  • The purpose of the act is to make parliamentarians and the executive accountable other than by way of a general election;
  • The act should also apply to senior government officials and the heads of parastatal organisations such as Eskom, Transnet and SABC where the power to appoint such officials ultimately vests in the executive.
  • The provisions of the act should prevail over any provisions of the Basic Conditions of Employment Act or the Ministerial handbook or Code of Conduct;
  • Public office is a position of trust and requires the utmost good faith;
  • The electorate is entitled to expect a higher standard of ethical conduct from the executive and senior government officials compared to that required of ordinary government employees;
  • In the event of a serious breach of duty and/or misconduct the person shall not, upon termination of office, receive the benefits of that office;
  • Persons in public office shall be fit and proper persons. This requirement refers mainly to the moral integrity of a person, his characteristics and particularly honesty, which is an important prerequisite for acting as a Member of Parliament;
  • If a prima facie case of transgression is made out against a public official, any person (voter) should be allowed to apply to court for the immediate suspension from office of that official pending investigation and the final decision of a court or tribunal.
  • Subject to and with due regard to the seriousness of the transgression, it shall not be necessary for the applicant to exhaust any other internal remedies which may be available to the applicant, for example calling on his political party’s chairman or committee to bring the application or lodging a complaint with the official employer, Public Protector or other authority;
  • The persons appointed to the Joint Committee on Ethics and Members’ Interests should not be members of Parliament. DM

Andries Havenga is attorney and associate at Du Plessis & Hofmeyr Inc.

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