Election post mortem – active citizenry and holding public officials accountable

11 August 2016

In the months leading up to this year’s Local Government Elections, the possibility of free and fair elections was marred by various incidents across the country. From protests in Vuwani regarding municipal demarcation, to the multiple political killings in KwaZulu-Natal, as well as the plethora of objections and complaints on election day, it was indeed unlikely that a calm political atmosphere would prevail following the release of the final results. However, after the conclusion of the voting process and the announcement of the final results, the Independent Electoral Commission (IEC) declared the elections free and fair. These sentiments have been echoed by the Law Society of South Africa.

Furthermore, political parties have been magnanimous in their behaviour and have actively started to engage in negotiations for coalition governance in many municipal areas - a procedure which no doubt will require much compromise. The aftermath of the Local Government Elections serves to instil confidence in our democracy and in the process of free and fair elections, which contribute to the same. For the most part, it seems that South Africans across the board heeded the call to participate in the elections and do so freely, while affording others the same right to participate in the elections. The question that begs an answer is now that the elections have come and gone, how else can South Africans continue to hold public officials accountable?

The trend is that political parties engage with their communities the most in the crucial period leading up to election time and this has led to the belief that elections are the only way by which the people can hold public officials accountable - the threat of replacement. In South Africa, elections are guaranteed and provided for in the Constitution. The right to “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government” is articulated as part of this democracy’s founding values.

Elections are however, periodic in nature and whilst they are a prominent accountability tool, they do not make it easy for citizens to hold their representatives accountable. They cannot work alone to guarantee accountability, transparency, responsiveness and openness from public officials as required by the Constitution. Other mechanisms exist by which citizens can hold public officials accountable in the years in which there are no elections and indeed, in conjunction with the same.

Chapter 9 of the Constitution establishes institutions whose mandate is to assist in holding the state and its organs accountable. For example, the office of the Auditor General audits accounts and financial statements of all national and provincial state departments and municipalities and is also involved in their financial management. Members of the public may, as concerned citizens, request assistance from this office where financial maladministration is suspected.

Chapter 9 also establishes the office of the Public Protector whose purpose is to “investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged to be improper…” and to take appropriate action. This office has fast become a shining beacon for this democracy in terms of accountability. As with the Auditor General, requests for assistance may be submitted by civil society at large. An example of this is the now famous report on the non-security upgrades at Nkandla entitled Secure in Comfort. The powers of this office were spelled out and vindicated in the Constitutional Court in March of this year in Economic Freedom Fighters v Speaker of the National Assembly and Others;Democratic Alliance v Speaker of the National Assembly and Others.

Disclosure by public officials and the state is essential to the fostering of an open and transparent society. Accountability can be achieved through requiring public officials to be open and transparent about their financial dealings, as well as those that that are carried out in their capacity as public officials. This goes hand in hand with the right to access to information as outlined in section 32 of the Constitution, buttressed by the Promotion of Access to Information Act (PAIA).

Over and above demanding access to information that directly impacts South Africans via the aforementioned mechanisms, there is the option of litigation. Whilst often costly, the courts are the ultimate watchdog in relation to a final solution. Citizens need not approach the courts individually and have the option of class actions or approaching civil society organisations who have the funds and experience in the concerned area. Civil society groups can monitor the performance of public officials and attempt to provide systematic oversight of their actions. For example, in City of Johannesburg Metropolitan Municipality and Others v Hlophe and Others, residents of an abandoned building in the city were evicted in preparation for renovations to the building. The City was ordered to provide the evictees with alternative accommodation, but repeatedly failed to do so, resulting in the occupants living in poor conditions in a building in the inner city. Redress was only made possible following an intervention by the Social Economic Rights Institute (SERI).

Active citizenry is not limited to participation in elections and engaging in litigation. Local government is designed to allow for public participation, which in turn benefits development and enhances democracy. Chapter 10 of the Constitution provides that citizens should have direct access to their elected local government representatives and that they should have the opportunity to participate in local governance. Indeed, where a decision is made that affects the people, they must be consulted. Moreover, the Municipal System Act requires municipalities to put in place systems for communities to participate in the decision-making processes.

Other means by which active citizenry can assist in holding public officials accountable are assembly, demonstration, picketing, and petitioning the relevant authorities as enshrined in section 17 of the Constitution. As has become part of South African culture, marches to government seats by concerned citizens brings their plight to the attention of those in power. 

Elections are intended to help render public officials accountable, but more often than not, citizens do not get the opportunity to hold their representatives accountable for their actions or lack thereof. It is important that South Africans utilise the other available avenues to bring their representatives to book and demand that they carry out their duties. It is not enough to wait for a five-year cycle to actively participate in the progress of their communities.

By Rebecca Sibanda, Legal Assistant, Centre for Constitutional Rights, 11 August 2016