ANALYSIS

Constitutional oversight in South Africa – critically endangered through underfunding and delays

By Marianne Merten 22 April 2018
Caption
South African people attend the celebration of the 20th anniversary of first democratic elections at the Union Buildings in Pretoria, South Africa, 27 April 2014. EPA/IHSAAN HAFFEJEE

What unfolded in the courts and Parliament over the past 10 days has raised a red flag on the toxic mix of throttling independent oversight entities of funding amid politicking and bureaucratic box-ticking at best, and obstructionism at worst. While it would be easy to shrug oversight off as fuzzy-wuzzy talk indulged in by the chattering classes, it actually is a fundamental decision facing South Africa’s constitutional democracy and the quality of life of all 55-million citizens.

 

Chief Justice Mogoeng Mogoeng, soon after his appointment in September 2011, set sights on ensuring the Office of the Chief Justice had its own budget. By any accounts, it was a tough fight to separate the funding for the judiciary from the departmental justice monies. It took years.

For the first time in 2015 there was Budget Vote 22: Office of the Chief Justice and Judicial Administration. It funds not only court management and access to courts, but also judges’ training and education and their salaries. Extricating the Office of the Chief Justice from the overall Justice Department funding put substance to the crucial principle of independence as the Constitution recognises the Judiciary as a separate sphere of the state – alongside Parliament and the Executive.

Independent funding is not the panacea – political will to uphold the constitutional founding values of accountability, responsiveness and openness and governance beyond ticking boxes are also a must – but independent funding is a fundamental starting point. Also for constitutionally mandated legislated oversight structures over the intelligence and police services, and institutions established in Chapter Nine of the Constitution to support democracy who receive their budgets from departments of justice, finance and home affairs.

But the warning lights are flashing.

Entrenched off-hand attitudes to legislated and constitutionally mandated oversight were highlighted by the unprecedented court action by Inspector-General of Intelligence Setlhomamaru Dintwe, who was effectively stripped of the ability to do his oversight job by the official he is meant to oversee and is currently investigating over a non-state parallel intelligence network, State Security Agency (SSA) director-general Arthur Fraser.

Court documents show officialdom’s repeated blocking, over months, of access to SSA premises and information the IGI is by law entitled to, and financial shenanigans by the SSA over funding for the Office of the Inspector-General of Intelligence (OIGI). At one stage the office was about R1-million in the red, and pleading for money. The 30 January 2018 good news that R10-million was allocated by SSA was reversed the following day when official communication described this as a mistake; the monies had actually been given to the ministry. The R10-million now constituted the ministerial travel budget, according to documents.

Even when oversight structures have their own budget, like the Independent Police Investigative Directorate (Ipid), there are issues. The police watchdog told MPs it’s at least R20-million short, and is struggling to pursue its legislated oversight mandate, including systemic SAPS corruption, never mind fill long-standing vacancies.

Finances are further put under pressure by “vexatious” SAPS litigation that cost IPID R6-million in legal fees. That’s effectively its operational budget. Or as IPID Executive Director Robert McBride said:

Our wheels have been squeaking. We haven’t received the necessary oil.”

As IPID pursues public complaints of police officers breaking the law, it has emerged that police fired only one cop found guilty in any of the 137 finalised internal disciplinary guilty verdicts on counts, including on murder and rape.

Lack of funding was cited by Public Protector Busisiwe Mhkwebane to justify to MPs the use of SSA officials in her office – as acting chief financial officer, for training her security manager and also potentially for the spooks and spies to get involved in the complaint case management system.

It is unacceptable, regardless of the motivation by the former SSA analysts – only for three months, Mkhwebane would point out – for spooks and spies to be involved in the constitutionally established institution in support of democracy by investigating “any conduct in state affairs, or in the public administration in any sphere of government” that could be suspect, improper or prejudicial. Also out of order are the now former SSA boss’s administrative action effectively to stifle oversight, and the SAPS’s moves to hide behind the blue curtain.

Like the public protector, fellow Chapter Nine institution the office of the auditor-general has battled with money as its budget is from finance, but also the departments and municipalities the office audits annually. A couple of years ago court action was looming as departments and municipalities were failing to settle their bill, standing at some R30-million.

While the IGI publicly in court papers recounted obstructionism and delays, closer inspection is needed in the public protector’s reports, but even a cursory glance shows plenty of instances when remedial action is delayed. Increasingly reports are being taken to court for review.

The Civilian Secretariat for Police this week told MPs of frequently being ignored, particularly at provincial level. Contemplated in the Constitution as an oversight structure, office politicking over years has effectively reduced the secretariat to a ministerial advisory panel. It does conduct oversight visits to check the police’s (non)implementation of domestic violence legislation, but it’s unclear what, if anything, happens to its reports. It seems they are gathering dust.

As seem to be the auditor-general’s audits, on which Cabinet is briefed. The blunt reality is that there should be no surprise the North West has erupted. The appalling state of governance has long been known, as consecutive auditor-general audits of provincial departments show.

The auditor-general’s most recently available local government audit of the 2015/16 financial year shows that not a single North West municipality received an unqualified audit. Put that alongside months of unresolved protests and go-slows in the health sector and it’s clear why residents are fed up. However, millions were paid in a questionable contract to a Gupta-linked company that is unable to deliver the promised mobile health services.

That Mahumapelo has been able to get away with it – and he’s not the only one – is directly linked to his role in the factional ANC politicking, heightened in the run-up to the December 2017 ANC national conference, and political protection enjoyed.

Bureaucrats in a highly politicised civil service like South Africa’s are prone to bending to the political winds. As are politicians, including ministers and premiers, who carefully watch the political weather wane.

In the face of serious service delivery failures such as the drowning of a young girl in a pit latrine at a Bizana school, the ministers and their deputies, or the political bosses at whose feet the buck stops, argue they’re only responsible for policy. Yet ministers regularly meet their MECs in what’s called MinMEC, presumably to discuss policy implementation, challenges and how to get back on the right track. But then again, maybe not.

Throw into this mix MPs who are more often than not quite satisfied to be taken on stage-managed oversight visits and frequently fail to interrogate rosy general performance achievements reflected in various power point presentations.

Amid this the culture of impunity is deeply entrenched. There always is a section in a law, a policy, a regulation or guideline that can be manipulated by officials or politicians to justify the dubious awarding of a contract or the purchase of that luxury car, posh hotel suite or first class flight.

Too much depends on the will of officials and politicians – opening the door to State Capture as the#GuptaLeaks have shown – although South Africa’s political culture of always looking for a popular and populist strongman/woman is a crucial contributing factor.

That now seems to be changing.

In recent months new boards installed at some of the most troubled State-owned Enterprises (SoEs) such as Eskom, SAA or the Passenger Rail Agency of South Africa (Prasa) have rolled up their sleeves to untangle the web of State Capture networks.

There have been resignations elsewhere. New appointees have indicated a different attitude; recently appointed SAPS crime intelligence boss Peter Jacobs this week told MPs of his meeting with Dintwe:

I’ll be fired if I don’t meet with the IGI. That is the compliance architecture (of our laws).”

And there’s been firm action as shown by State Security Minister Dipuo Letsatsi-Duba, who overruled her former DG’s administrative action against the constitutionally mandated oversight office. By any account, with the SSA DG post now open, it’s a further opportunity to entrench change.

Important questions arise over what is unfolding now. Is the unravelling of one network of patronage making way for another? And will the tone set at the top trickle down amid continued political calculations – or will it entrench a permanent change away from prevailing governance attitudes favouring executive administrative action, bureaucratic box ticking alongside secrecy and law and order?

It’s too early to tell.

But a move to uphold the constitutionally enshrined values of accountability, responsiveness and openness must be welcomed to ensure that what came to light in the past 10 days does not happen again.

Finding independent funding for oversight structures is key.

Oversight and accountability are not nice to have for a few, but fundamental to South Africa’s constitutional democracy that establishes in its preamble “a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law” and the foundation “to improve the quality of life of all citizens and free the potential of each person”. DM

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