Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
24 March 2010

What we talk about when we talk about accountability

Accountability lies at the heart of our constitutional order. Yet, many South Africans and the overwhelming majority of politicians (and their apologists and enablers in academia) do not seem to believe in the muscular form of accountability envisaged by our Constitution. Despite some encouraging signs that some Parliamentary committees are grappling with ways of holding the executive and public officials to account, a culture of unaccountability still prevails.

Thus we had the ANC chief whip Mathole Motshekga recently stating that ministers should not have to appear before Scopa because “they have a country to run”. Motshekga was previously forced to clarify his statements to an ANC study group at which he told MPs he believed Scopa wanted to “parade and embarrass” ministers. This was an absurd statement demonstrating a shocking ignorance of the Constitution and displaying the kind of arrogance that is the enemy of accountability.

No wonder the Minister of Defence failed to appear before Scopa yesterday and excused herself in a letter dated last week but only delivered to Scopa before its meeting was about to start. No wonder also that Scopa chairperson, Themba Godi, yesterday lambasted Collins Chabane, Minister in the Presidency, for poor internal controls in the Presidency stating that there was:

serious concern about the level and quality of leadership in the Presidency. People get away with murder. Big and small financial offences are written off, as was the case with the National Youth Commission. These are people without any sense of responsibility, but they only get more money. There must be consequences for negligence.

No wonder also people like Julius Malema and their apologists and enablers in academia attack and smear anyone who point out the shortcomings of officials and politicians and mock their self-important and arrogant ways. Instead of applauding the diligent and patriotic manner in which some among us try and hold officials and politicians to account, such apologists and enablers cry racism and plead for “sensitivity” in handling the abuses of power, undermining of the Constitution, corruption, incompetence and laziness by politicians and state officials.

This happens because some among us do not subscribe to the model of accountability envisaged by the Constitution and wish to excuse the abuse of power and the undermining of the Constitution because of personal or ideological loyalties, personal identity hang-ups or because they stand to gain financially from defending the indefensible.

When one mocks a Minister because he or she failed to adhere to the provisions of the Constitution or the law one suddenly is branded a racist liberal. When one points out that the President should not have taken R4 million from a crook, should not have done favors for that crook and should not have lied about it, one becomes a “hater of the ANC”. When one lambast officials for dishing out tenders on the basis of connection or for looting state coffers one is branded as an opponent of transformation.

What such apologists and enablers fail to see, is that they are being profoundly unpatriotic and short-sighted and are undermining the very essence of our democratic order. In a sense, they are the true counter-revolutionaries as their actions or their silence undermine our constitutional system of democracy and accountability which, in turn, sell out the poor and destitute voters who rely on the state to provide effective and efficient services and to create conditions in which every individual will be able to reach their full potential as human beings.

Section 1 of the Constitution states that ours is a democracy based on “[u]niversal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The constitution thus explicitly links democracy to accountability and underlines the importance of the latter for the flourishing of the former. Where attacks are launched against the media or whistle blowers who work to keep politicians and state officials accountable, such attacks are nothing less than an attack on democracy itself.

Section 195 of the Constitution – probably the most ignored section of the document – underscores this point. Once again it links accountability to democracy and states that:

Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles

  1. A high standard of professional ethics must be promoted and maintained.
  2. Efficient, economic and effective use of resources must be promoted.
  3. Public administration must be development-oriented.
  4. Services must be provided impartially, fairly, equitably and without bias.
  5. People’s needs must be responded to, and the public must be encouraged to participate in policy-making.
  6. Public administration must be accountable.
  7. Transparency must be fostered by providing the public with timely, accessible and accurate information

The fundamental problem is that accountability becomes meaningless and the democracy is undermined when wrongdoing is covered up or, if it is exposed, those guilty of wrongdoing face no adverse consequences. A culture in which excuses are made for those who break the law, waste our money or fail to fulfill their constitutional and legal obligations (whether this is Jeff Radebe, Julius Malema or the President himself), is a profoundly anti-democratic culture. This is a culture in which no one is ever held responsible. In such a culture the belief will take root that: “because everyone else is doing it, I can also do it and get away with it.”

Of course the ultimate form of accountability is at the ballot box. But because we have a one-party dominant political system and because, for various reasons, most voters still do not believe that it is feasible to vote for anyone but the ANC, the ultimate form of accountability is not operative in our democracy. Opposition parties are either weak or lack credibility and apologists and enablers of the corrupt and the lazy do everything in their power to keep things that way.

Meanwhile ordinary citizens suffer while a few well-connected tenderpreneurs and hangers-on loot the state coffers and undermine the Constitution. Something has got to give at some point. But how and when? That is the big question to which I do not have a ready answer.

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