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Part IV Independent Constitutional Institutions, 14 The Role of Emerging Hybrid Institutions of Accountability in the Separation of Powers Scheme in Africa

Charles M. Fombad

From: Separation of Powers in African Constitutionalism

Edited By: Charles M. Fombad

Content type:: Book content

Product:: Oxford Constitutions of the World [OCW]

Series:: Stellenbosch Handbooks In African Constitutional Law

Published in print:: 03 March 2016

ISBN:: 9780198759799

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(p. 325) 14 The Role of Emerging Hybrid Institutions of Accountability in the Separation of Powers Scheme in Africa

1. Introduction

Since the 1990s there has been a remarkable increase in the number and powers of hybrid independent institutions of accountability provided to perform one or more of the functions usually associated with the three traditional branches of government in modern African constitutions. Although this trend coincides with a global explosion of similar institutions,¹ it may be argued that the constitution of the Republic of South Africa, 1996 was the first on the continent to give these institutions of accountability the special constitutional status that has now been replicated in some recent constitutions, particularly the Kenyan constitution of 2010 and the Zimbabwean constitution of 2013. The steady rise in the number and the powers of these institutions playing a ‘watchdog’ role raises interesting issues not only about the continuous relevance of the doctrine of separation of powers but also about how they can be reconciled with certain basic principles, theories, and practices of democratic governance and constitutional law. Are we beginning to see the emergence of a fourth branch of government or is this simply a convenient and transient distraction to the real challenges facing good governance and accountability in Africa? Can these institutions overcome the numerous weaknesses that we have seen with the operation of the ordinary checks and balances and ensure that African governments operate in an open, transparent, accountable, and responsive manner to the needs of their people?

This chapter assesses the extent to which these institutions can contribute towards checking against abuses of powers, enhancing accountability, and strengthening constitutionalism. It is contended that the emergence of these institutions, far from (p. 326) demonstrating the failure of separation of powers in checking and controlling abuse of powers may well mark an important stage in the doctrine’s evolution and adaptation to the realities of modern constitutionalism. However, for these institutions to succeed, more efforts have to be made in their design to prevent them from being rendered ineffective.

The discussion proceeds with Section 2 which examines the nature and diverse manifestations of these hybrid institutions. What exactly are the institutions that we are talking about? Section 3 discusses that potential role and challenges faced by these institutions in dealing with issues of accountability and abuse of power. It considers the advantages and disadvantages of relying on these institutions. On account of their growing importance, Section 3 considers the constitutional design patterns and options that could enhance their effectiveness. In conclusion, it is argued that the explosion of these institutions comes at a critical time when numerous challenges threaten Africa’s halting transition to constitutional governance. These hybrid institutions provide diverse ways in which these challenges need to be confronted. Nevertheless, the risks of their becoming a mirage that could threaten constitutional and democratic governance should not be underestimated.

2. The Nature and Diverse Forms of Hybrid Institutions

Generally, a wide variety of terms have been used in the literature to refer to the various non-elected and non-representative institutions, bodies, or organizations which have been created over the centuries to perform one or more of the functions usually vested in the legislature, executive, or judiciary. Some of these have been referred to as ‘independent accountability agencies’,² ‘independent regulatory commissions’,³ ‘independent agencies’,⁴ ‘non-majoritarian bodies institutions’,⁵ or simply as ‘unelected bodies’.⁶ Under the 1996 South African constitution, these institutions are referred to as ‘State Institutions Supporting Constitutional Democracy’, whilst the 2010 Kenyan constitution refers to them in Chapter 15 as ‘commissions and independent offices’, and the 2013 Zimbabwean constitution refers to them in Chapter 12 as ‘independent commissions supporting democracy’. The differences in nomenclature hardly reflect the incredible diversity of institutions that are supposed to be covered under these broad categorizations nor their nature and mandate. For instance, these classifications may cover independent institutions of a highly specialized nature primarily dealing with certain specific issues and operating outside the three branches of government, such as the ombudsman and the Auditor-General. They also cover some accountability institutions which are not entirely independent at least in the sense that they are usually (p. 327) located within one of the three branches of government, for example, the Public Service Commission. Within this broad categorization are independent institutions whose primary functions are of a regulatory nature⁷ as opposed to those whose primary functions are focused on issues of accountability in government such as the ombudsman. These few examples serve to underscore the complex nature of these institutions. However, for the purposes of our analysis, the expression ‘hybrid independent institutions of accountability’ (referred to in short simply as hybrid institutions or institutions) is reserved for the independent institutions provided for in the constitution, located within or outside the three branches of government, whose primary function is to investigate and hold government accountable for its actions or inactions.

The form that these hybrid institutions may take depends on several factors, such as their legal status, location, and mandate. Generally, these institutions, especially in the West and in pre-1994 Africa were created by ordinary legislation. This probably explains why there have been continuous debates about their constitutionality and democratic legitimacy. This discussion however focuses on the hybrid institutions that are constitutionally entrenched, although the detailed framework and other operational details are usually dealt with in ordinary legislation. Whilst the rationale for constitutional entrenchment is explored in a later section, the manner in which these hybrid institutions appear in present constitutions is worth noting. They may be governed by the provisions in a particular Part or Chapter of the constitution or by several provisions dispersed in different sections of the constitution, or in some cases, a combination of both. The 1996 South African constitution combines both; a number of sections dispersed in the constitution regulate some institutions whilst one particular chapter is reserved for dealing with a specific group of institutions. This was clearly no accident. The institutions established under Chapter 9 of the constitution appear to be considered so critical to ‘supporting its constitutional democracy’⁸ that they are specially entrenched in the sense that they are expressly protected by a number of constitutional principles spelt out in section 181(2). A number of other similar institutions which also exercise important accountability functions, such as the Judicial Service Commission and the Public Service Commission⁹ are also provided for in the constitution but they do not enjoy the high level of protection reserved for the Chapter 9 institutions. A different approach is adopted by the 2010 Kenyan constitution. Its twelve hybrid institutions, referred to as ‘commissions and independent offices’ are widely dispersed in the constitution but they are all subject to the general Page Id: 327References(p. 328) principles in Chapter 15, Articles 248‒54.¹⁰ Zimbabwe by contrast in its 2013 constitution adopts an approach very similar to that of South Africa. It provides for and regulates its six ‘independent commissions supporting democracy’ in Chapter 12 ¹¹ but provisions regulating other commissions which also exercise functions relating to combatting abuse of powers are widely dispersed in the constitution.¹² Outside the common law jurisdictions, there have also been some attempts to constitutionally entrench a number of institutions aimed at promoting constitutionalism and good governance, but one can argue that this has not been done with the sophisticated creativity displayed by the South African constitution maker that was copied in Kenya and Zimbabwe. The Burundi constitution of 2005 established a number of ‘national councils’ some of which may play a role in enhancing accountability and promoting constitutionalism.¹³ The 2010 Angolan constitution in section IV provided for what is referred to as ‘essential justice institutions’, made up of two institutions; an ombudsman and another, referred to as ‘Legal practice’.¹⁴ Other recent constitutional bodies which bear some resemblance to the hybrid independent institutions under discussion appear in the 2011 constitution of Morocco¹⁵ and the 2014 constitution of Tunisia.¹⁶

A second point which needs to be noted about these hybrid institutions is their location vis-à-vis the other three branches of government. They range from those which are independent in the sense of being located completely outside the three branches, the most frequent example in many African constitutions being the ombudsman and some of the anti-corruption agencies, and those which operate within one of the branches of government. Under the 1996 South African constitution, all the Chapter 9 institutions are independent and located outside the three branches Page Id: 328References(p. 329) of government,¹⁷ whilst the others which are regulated by other provisions in the constitution, are located within one or the other of the three branches, most often the executive. Increasingly, the trend is in favour of locating institutions dealing with issues such as maladministration, corruption, human rights investigations, elections, and minority rights to institutions outside the ordinary branches of government whereas institutions dealing with accountability issues within the public, judicial, security, military and police services, and national prosecution are handled by institutions located within the government.

Although the trend towards the constitutional entrenchment of these hybrid institutions in Africa may be new, many of these institutions have a very long history. For example, the first ombudsman was established in Sweden in 1809 but institutions exercising similar functions had appeared long before then and have since spread to other parts of the world.¹⁸ The earliest antecedents of the Auditor-General have been traced to the English Auditor of the Exchequer who is referred to in documents dating from 1314.¹⁹ In the United States, similar independent institutions to accomplish a myriad of tasks have been around for more than 100 years.²⁰ In spite this long history hybrid institutions have remained a regular subject of academic debate both in terms of their theoretical foundations in constitutional law and practice as well as their practical necessity. Do these institutions have anything to add to Africa’s quest for accountable constitutional governance?

3. Assessment of the Actual and Potential Role of the Hybrid Institutions in Enhancing Accountability

Commenting ten years after the South African Chapter 9 institutions came into existence, Christina Murray summarized the general press coverage as portraying a dismal picture of ‘institutions lurching from one crisis to another’.²¹ She was hardly optimistic and she was right not to be. In 2014, the overall picture, whilst not one of doom and gloom, suggests that there may be cause for some cautious optimism. This may be largely due to the work of one of these hybrid institutions, the Public Protector (the South African ombudsman) whose incumbent, Advocate Thuli Madonsela,²² has (p. 330) so captured worldwide attention for her unrelenting, brave, and exceptional work in fighting maladministration, especially corruption in high places in South Africa that she was listed as one of Time magazine’s top influential people for 2014. Is this a change in fortune for just one of these hybrid institutions or for all? Is her crusade against abuse of power, especially corruption by politicians a sign that these institutions can finally hold Africa’s so-called big men to account? We shall first take a critical overview of these institutions and on the basis of this consider some of the design features that are likely to make these institutions more effective and efficient.

3.1 A critical review of the hybrid institutions

In spite of the rising popularity of hybrid institutions of accountability today, their importance and continuous relevance depends on how they are able to overcome the theoretical and practical weaknesses that critics have pointed out over the years. One of the main and persistent criticisms, especially from US scholars, is that they possess and exercise important powers and authority normally conferred to one of the three branches of government, without being either directly elected by the people or directly managed by elected officials. This is what is usually referred to as the non-majoritarian argument.²³ This criticism is closely linked to that made by some other opponents of these institutions who argue that by blending the functions of the three branches of government these institutions violate the principles of separation of powers.²⁴ It is submitted that these criticisms do not apply to the institutions created under modern African constitutions. First, there is nothing inherently inconsistent with the doctrine of separation of powers in requiring any of these institutions to perform a function that is normally associated with one of the branches of government. Far from violating the doctrine, by creating these institutions, nothing more than fragmenting and limiting power in order to prevent tyranny, which is the very raison d’être of the doctrine, is being achieved. Second, the so-called non-majoritarian argument has no basis in Africa. One reason is that these institutions are created by the very constitution which provided for elected officials. Arguably, on the balance of constitutional and democratic legitimacy, the institutions can claim more legitimacy than elected officials. Their existence is based on a constitution which was approved by the people. This contrasts with elected officials whose legitimacy is at best transient because it is based on their election by a section of the people. They are elected to promote the policies of a political party at a given time. Such elected officials can be voted out and their policies changed whilst the constitutional goals, objectives, and values espoused by the hybrid institutions endure regardless of who has been elected.

A more serious criticism which easily reflects African realities is the suspicion that these institutions may end up as a convenient smokescreen for, rather than as a means to counter abuse of, powers. The same problems that have rendered the checks and balances that result from separating powers ineffective could easily render these (p. 331) institutions impotent. As the preceding chapters have shown, the ability of African parliaments to control and check executive abuses has been substantially compromised by the fact that most of them are controlled by a dominant party controlled by the president and his cronies. For many years, one of the most popular hybrid institutions established by many African countries, with the prodding of international institutions and foreign donors were anti-corruption agencies (ACAs). A 2007 study suggested that there were about eighteen stand-alone and six integrated ACAs operating in Africa.²⁵ Some well-known examples of stand-alone agencies are Botswana’s Directorate on Corruption and Economic Crimes (DCEC), Nigeria’s Independent Corrupt Practices and Other Related Offences Commission, and the Economic and Financial Crimes Commission (EFCC), and Kenya’s Anti-Corruption Commission.²⁶ The tremendous success of ACAs in pulling some countries such as Hong Kong and Singapore in South East Asia, and Argentina and a few countries in South America, which were previously subject to endemic corruption to relatively low levels of corruption, encouraged many African countries to adopt this approach to curbing corruption.²⁷ A number of studies of some of the African ACAs and similar institutions show that they have had rather limited success.²⁸ A number of problems have generally plagued these institutions in Africa.

A major weakness is that many of these institutions have suffered from serious design faults that have limited their independence and therefore exposed them to manipulation by politicians. Merely labelling an institution ‘independent’ or locating it outside any of the branches of government will not shield it from political interference and manipulation. The main form of this interference has usually come through the politicization of the appointment of the head and other senior officials. It is through the appointment systems that the effectiveness of many of these institutions has been stunted. Where the heads and other senior officials of these institutions are appointed by the president, acting alone or on the recommendations or with the approval of parliament, because of the executive reach and control of most parliaments, this effectively enables the president to appoint only people likely to be sympathetic to his line of thinking. Most studies of South Africa’s Chapter 9 institutions show that the (p. 332) ANC government has always ensured that it appoints only its sympathizers to head these institutions under its avowed policy of ‘cadre deployment’,²⁹ even if some of them, such as the present Public Protector, in contrast to her predecessor, has taken a firmly independent line.³⁰ Such an independent line has its own risks. Governments usually show their displeasure by starving the institution of the funds that it needs to carry out its tasks. It is thus no surprise that the South African Public Protector has been losing staff because of shortage of funds to pay competitive salaries.³¹

The record of implementing the decisions taken by many African institutions is fairly poor, especially when it concerns top politicians. This is particularly so when it comes to reports of corruption. The experiences of the South African Public Protector after the publication of the public report on the Nklanda scandal is an excellent example worth recounting. Several months after the Public Protector sent her report to parliament in which she showed that President Zuma and his family had unduly benefited from the so-called security upgrades at his private residence costing R246 million and recommending that he should be asked to pay back some of the cost relating to expenditures that were not related to security, a committee to examine the report was only constituted after enormous pressure from the opposition parties.³² After several delays, the eleven-member committee, six from the ruling ANC and five from the opposition parties eventually met, but disagreements over a number of procedural matters, especially over a demand by the opposition members that the president should be invited to come and answer questions before the committee led to the opposition walking out. The rest of the six ANC members of the committee easily absolved President Zuma of any responsibility for the wrongful expenditures on matters that were not related to the security upgrades and were very critical of the Public Protector. This was in spite of the fact that two other reports, one from an inter-ministerial committee and another by the Special Investigations Unit (SIU) had also clearly indicated that there had been extensive use of state resources for upgrades that had no bearing on security. The ANC with its 249-member majority in a parliament of 400 is making every effort to frustrate any attempts to hold the president accountable for the massive misuse of state resources. Generally, where the political stakes are very high, most of these hybrid institutions in Africa usually prefer to play it safe. For (p. 333) example, Botswana, consistently rated as Africa’s least corrupt country for the last decade,³³ its ACA, the Directorate of Corruption and Economic Crime, is well noted for leaving the corrupt elites to swim undisturbed whilst it focuses on the tiddlers.³⁴ Many ACAs have thus operated more like toothless bulldogs that protect the rich, powerful, and well-connected wrongdoers but raise a storm about petty offenders who should ordinarily and routinely be dealt with by the police.³⁵

The creation of so many institutions certainly carries the risk not only of duplication but also of conflicts with the other branches of government, unnecessary bureaucracy, and inefficiency due to cases falling between the cracks in turf identification wars.³⁶ For example, one may question whether Kenya and Zimbabwe need all the several institutions they have provided for. Wouldn’t it have been cheaper and probably more efficient to create fewer but more robust institutions? For example, it is doubtful whether separate and distinct institutions to deal with, for example, police, defence force and prison and correctional services issues in Zimbabwe or gender issues in South Africa are really necessary. Nevertheless, there are some whose existence can be justified. First, the case for distinguishing between some of these institutions and specially entrenching and protecting some, like the South African and Zimbabwean constitutions do is very strong. Specialized independent institutions are certainly needed to deal with Africa’s four most pernicious evils viz, maladministration, human rights violation, corruption, and electoral practices. Each of these institutions will deal with different areas where transparency and accountability is crucial and where the traditional checks and balances have proven to be woefully ineffective. Besides electoral fraud, misappropriation of public funds, human rights violations, and maladministration need different types of intervention from those that the three traditional branches of government can offer. Thus, in certain circumstances, the best solution is the ombudsman, for another a permanent anti-corruption agency, and in yet another situation, an independent electoral commission. These institutions are therefore better placed to engage and utilize experienced experts with a better knowledge, for example in dealing with human rights or anti-corruption issues, which are skills politicians and bureaucrats often lack. Second, the normal checks and balances that come with the traditional branches of power allocation are very formal and are not easily accessible to the poor and vulnerable. Institutions like the human rights commissions, the ombudsman, and the anti-corruption agencies are often decentralized and have offices in many parts of the country where their services can easily be accessed by the poor who often lack the means to approach, for example, the ordinary courts. Perhaps the most important fact that is underscored by the South African Chapter 9 institutions are the guiding principles designed to shield and protect these institutions (p. 334) from manipulation by other branches of government. Without adequate and legally enforceable safeguards entrenched in the constitution to prevent any branch of government from interfering with the activities of these institutions, their establishment will serve no purpose.³⁷ If the ominous and foreboding signs of developments in South Africa, in spite of its carefully crafted constitution are anything to go by, it is clear that more needs to be done to reverse Africa’s apparent constitutionalism curse. It is therefore necessary to consider what measures need to be implemented to make these institutions more efficient and effective.

3.2 Enhancing the role of hybrid institutions

Because of the difficult and sometimes hostile environment in which hybrid institutions operate, it is clear that only carefully conceived and well-designed institutions stand a chance of making a meaningful contribution to promoting good governance, accountability, and constitutionalism in Africa. Some of the good constitutional designs, especially in Anglophone Africa have in an incremental manner improved on the innovations that were introduced in South Africa’s 1996 constitution. However, the steadily multiplying challenges of governance in South Africa, where corruption and poor service delivery is becoming endemic, suggest that in spite of its pretty robust constitutional framework, there are still some loopholes that need to be closed. In order to enhance the performance of hybrid institutions generally, two important lessons from the South African experience can be built on. First, the idea of constitutional entrenchment and second, the need to specially protect these institutions from the three branches of government.

Constitutionally entrenching hybrid institutions of accountability rather than merely leaving them to be regulated by ordinary legislation has a number of advantages. First, because the constitution is the supreme law of the land and is based on, as well as reflects, the sovereign will of the people, any law that violates it will be declared invalid to the extent to which it is inconsistent with the constitution. Also as a result of its special status, constitutions are meant to endure and are often protected from careless, casual, or arbitrary amendments by transient majorities or opportunistic leaders trying to promote their own selfish political agenda.³⁸ Hence, once an institution is constitutionally entrenched, this provides it with a greater likelihood of institutional durability, certainty, and predictability than one created by ordinary legislation which can be changed by parliament at the convenience of the government in power at any given moment. Second, provisions entrenching the institution should be reinforced Page Id: 334References(p. 335) by making their implementation mandatory,³⁹ rather than leaving their implementation to the discretion of the government. This will open the way for an action for violation of the constitution where the alleged ‘violation’ consists of a failure to fulfil a constitutional obligation. The effect of this is to place the duty on the executive and legislature to establish an institution in the exact manner contemplated by the constitution obligatory and legally enforceable and not discretionary.

The second lesson and arguably, the main innovation of the South African constitution as far as accountability institutions are concerned, are the four ‘establishment and governing principles’, provided for under section 191 of Chapter 9 of the constitution. It is worth noting that although many African constitutions, both pre- and post-1990 provide for the establishment of some of these institutions, especially an ombudsman, public service commissions, and judicial service commissions, they have hardly been able to operate effectively because they were too easily exposed to political interference in one form or another. The four guiding principles designed to ensure that these institutions are an effective cog in the constitutional wheel and not a political charade of symbolic value only are stated in section 191 as follows:

(2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.

(3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.

(4) No person or organ of state may interfere with the functioning of these institutions.

(5) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.

Something close to these principles are referred to in some constitutions as ‘directive principles of state policy’,⁴⁰ but these, unlike the principles in the South African constitution, are stated in purely hortatory terms. In certifying the 1996 constitution, the Constitutional Court had drawn particular attention to these hybrid institutions of accountability and pointed out that ‘they perform sensitive functions which require their independence and impartiality to be beyond question, and to be protected by stringent provisions in the Constitution’.⁴¹ However, in the light of the experiences of the last two decades and the approach adopted in some of the recent constitutions, a number of changes need to be made to the section 191 provisions to give them more teeth. The first change concerns the second principle. In order to enhance the ability of Page Id: 335References(p. 336) the institution to operate independently, it is necessary to expressly recognize and protect their financial autonomy. The aim should be to prevent budgetary allocation from being used to prevent them from fulfilling their mandate.⁴² An equally important sentence which needs to be added to this principle should state that, in order to ensure the effectiveness of these institutions, their findings, decisions, recommendations, and conclusions, although not binding, must be complied with unless there are good reasons for not doing so. There is certainly some merit in the views put forward by some who argue that the role of these institutions should lie in ‘influence, not in formal power’, and in ‘influence rather than enforcement’.⁴³ But this cannot be enough. It makes little sense to create institutions like these and give them the powers to spend large amounts of taxpayers’ money to carry out investigations if the results of these investigations will simply be ignored for political reasons by Africa’s parliaments, controlled as they are, by dominant parties, like South Africa’s ANC has done with the Public Protector’s recommendations on the Nkandla scandal. This will also address the regular criticisms that these institutions are weak and ineffective because they can only bark but not bite. It is also fair to allow the persons against whom adverse findings are made, especially since most of the processes are not adversarial, to have an opportunity to challenge an outcome that is perverse and unreasonable through a process of judicial review. In other words, the recommendations must only be ignored where there are good legal reasons for doubting their fairness. A second change that is imperative is that the fourth principle should be modified to state that quarterly reports should be submitted to a Special Parliamentary Committee on Governance and Accountability which is constituted in a manner to limit the possibility of the governing party frustrating the process.⁴⁴ The third change is to add two important new principles to the four principles in section 191 of the South African constitution, which it is hoped will help to address some of the problems that South Africa has faced, especially after the manner in which the Public Protector’s Nkandla report was casually rejected by the increasingly unruly ANC government. The new fifth principle should state that any legislation, action, measures, or mechanisms introduced to regulate any of these institutions, which undermines the essential purpose of combatting corruption and ensuring accountability and transparency shall be declared null and void by the courts. (p. 337) A new sixth principle should address the critically important issue of appointments of the heads and senior officials of these institutions. Although appointments should still be made by the president, the procedure to be followed as well as the requirements for appointment must be expressly stated in the constitution. In this respect, the appointment process must be guided by three factors. First, members to be appointed to these institutions should be non-political or if political, should not have been actively involved in politics in the preceding five years. Second, all senior positions must be widely advertised, and members of the public should be encouraged to propose suitable persons. This should be followed by public interviews conducted by the Special Parliamentary Committee on Governance and Accountability who will prepare a short list of appropriate nominees for appointment and submit this to the president.⁴⁵ At the end of the interviews, at least two and not more than three nominees for each vacant position with the necessary motivation for each nomination should be made. The president will make the final appointments from the list of nominees. This will reinforce the independence of the institution. Whilst there is no perfect system, it can be argued that an appointment system which places the ruling party and opposition parties on a par will enhance the prospects for the appointment of independently minded persons who owe their positions to their expertise rather than political appointees who are likely to remain beholden to those who appointed them.⁴⁶

The importance of these principles in acting as a powerful bulwark against the persistent problem of political manipulation of accountability institutions has been underlined in a number of South African cases. In Independent Electoral Commission v Langeberg Municipality,⁴⁷ the Constitutional Court had no hesitation in pointing out that as a result of the constitutional guarantees of the independence and impartiality of the Independent Electoral Commission (IEC), parliament had a duty in making the legislation regulating its activities to ensure its manifest independence and impartiality and that such legislation was justiciable for conformity to the constitution. In the absence of such guarantees, the courts will lack the power to review legislation on electoral commissions to ensure that it is not biased in favour of ruling parties. The importance of the independence of these institutions was again underscored in New National Party of South Africa v Government of the Republic of South Africa and others.⁴⁸ In this case, questions were raised about the independence of the IEC and the possibility of governmental interference with its proper functioning. The Constitutional Court, although concluding that the allegations had not been proven by the facts, nevertheless pointed out that the IEC was one of the institutions provided for under Chapter 9 of the South African constitution which are a product of a ‘new Page Id: 337References(p. 338) constitutionalism’⁴⁹ whose independence had to be jealously preserved by the courts. Two factors that were relevant to this independence were highlighted by the court. First, it pointed out that independence implied financial independence which required that the IEC should be given enough money to discharge its functions. This had to come, not from government but from parliament and the IEC had to be ‘afforded an adequate opportunity to defend its budgetary requirements before parliament and its relevant bodies’.⁵⁰ Second, the IEC’s status also implied administrative independence which meant that the IEC was subject only to the constitution and the law, and answerable only to parliament rather than the executive. The issue of adequate resources needs to be emphasized. An institution that is understaffed and under-resourced may cause more harm than good because its over-stretched staff will be easy prey for those who want to bribe their way out of lengthy prison sentences. Finally, the Court in referring to the principles in section 191 of the constitution pointed out that they imposed obligations which must ‘be scrupulously observed’.⁵¹

The Constitutional Court’s decision in Glenister v President of the Republic of South Africa⁵² further illustrates what is meant by these institutions being independent. The brief background to the case is that in December 2007, the ruling ANC in a historical conference swept aside the leadership of then President, Thabo Mbeki. The Congress resolved that South Africa should have one single police force and that the special corruption fighting unit, the Directorate of Special Operations, popularly known as the Scorpions, should be disbanded. There was widespread media speculation at the time of this resolution that the ANC were engaged in a vendetta against the Scorpions because they had investigated many senior officials in the party, including the then newly elected leader of the party, Jacob Zuma.⁵³ When the bill that disbanded the Scorpions and established a new unit popularly known as the Hawks became law, Glenister brought an action challenging the constitutionality of this new legislation. The Court by a majority of 5 to 4 declared that the amended Chapter 6A of the South African Police Service Act introducing the Hawks was inconsistent with the constitution and invalid to the extent that it failed to provide for an adequate degree of independence for the corruption-fighting unit that it sought to establish. Although there was no specific provision in the constitution specifying that the unit must be independent, the majority held that the constitutional obligation to set up an independent unit could be inferred from the duty imposed by section 7(2) of the constitution to ‘respect, protect and fulfil’ the rights in the Bill of Rights. It went further to point out that, based on section 39(1)(b) of the constitution which required the Court in interpreting the Bill of Rights to consider international law and section 231 which states that all international agreements approved by parliament are binding, the establishment of a corruption-fighting unit ignoring binding international instruments which required such a unit to be independent was not a reasonable constitutional measure. The Constitutional Court explained the meaning and significance of independence for these institutions thus:

Page Id: 338References(p. 339) This Court has indicated that ‘the appearance of perception of independence plays an important role’ in evaluating whether independence in fact exists … By applying this criterion we do not mean to impose on Parliament the obligation to create an agency with a measure of independence appropriate to the judiciary. We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy – protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.⁵⁴

In this indirect manner, the court declared legislation unconstitutional for violating international law which became relevant not only because it was based on instruments that are binding on the South African government but also because they reflect the ethos of constitutionalism. In other words, the constitutional duty to create a corruption-fighting unit was not discharged by creating one which will be ineffective because it was placed under the control of politicians whom it is required to investigate. On the other hand, independence does not require complete insulation from political accountability. Rather, it requires insulation from a degree of management by political actors that would enable the institution to operate without fear, favour, or prejudice. Where it is palpably clear that the institution being created will not be able to operate independently, then citizens have a right as well as a duty to approach the courts to intervene and invalidate the relevant piece of legislation for violating the principles which should inform the establishment of these institutions.

One other important point that emerges from the Glenister case is the importance that the courts should attach to the numerous international treaties and conventions to promote good governance that African governments sign and ratify but rarely rush to implement in domestic law. Many forms of abuse of power, such as corruption, are now matters of global concern and subject to international cooperation, especially through mutual legal assistance in criminal matters, and extradition is crucial. The Glenister case and the famous Botswana case of Attorney-General v Dow⁵⁵ suggest that whilst courts cannot compel governments to incorporate these international treaties and conventions in domestic law, they can at least compel them not to act in breach of them. In dealing with the position where a treaty had been signed but had not been incorporated into national legislation, Amissah JP in Attorney-General v Dow, cited with approval the following passage from the judge a quo in the same case:

I bear in mind that signing the Convention [the OAU Convention] does not give it the power of law in Botswana but the effect of the adherence by Botswana to the Convention must show that a construction of the section which does not do violence to the language but is consistent with and in harmony with the Convention must be Page Id: 339References(p. 340) preferable to a ‘narrow construction’ which results in a finding that section 15 of the Constitution permits discrimination on the basis of sex.⁵⁶

In doing so, the Court basically followed the well-established presumption in statutory interpretation that courts will strive to interpret legislation in such manner that it will not conflict with international law. The judge went further to explain this thus:

Botswana is a member of the community of civilised States which has undertaken to abide by certain standards of conduct, and, unless it is impossible to do otherwise, it would be wrong for its courts to interpret its legislation in a manner which conflicts with the international obligations Botswana has undertaken. This principle, used as an aid to construction as is quite permissible under section 24 of the Interpretation Act … ⁵⁷

If courts are willing and able to rigorously enforce the six guiding principles, there is a reasonable likelihood that these hybrid institutions may be able to bring endemic problem of abuse of powers under control.

4. Conclusion

Any constitutional framework which stands a chance of working must be informed by, built on, and reflect the people’s history, their particular circumstances, their fears, aspirations, and goals. The rise in number and powers of hybrid institutions of accountability is clear indication that the traditional checks and balances associated with the three branches of government are no longer sufficient. Africa’s big men have, with the complicity of their dominant parties captured and tamed the legislature and through the appointment systems limited the effectiveness of the judiciary.

Much as it can still be said that Africa is better governed today than it has ever been, there is no reason to celebrate or even become complacent. South Africa, with its liberal and well-crafted constitution of 1996 raised high expectations that it would lead the continent on the difficult path towards good governance and consequently economic recovery and growth. Two decades into its constitutional democracy under a black government, it appears to be heading down the well-trodden path that led many African countries a few years after independence into political instability, repression, economic stagnation, and generalized poverty. Even accepting that the country is still grappling with the legacy of the evils of apartheid, twenty years with a solid constitution to build on is too soon for the country to start heading towards the precipice of dictatorship and repression.⁵⁸ An even more significant sign of the changing times (p. 341) concerns Botswana; for more than three decades it was held up as one of the two or three African beacons of liberal, accountable, clean, and democratic governance. Alas, it too appears to be moving into reverse gear.⁵⁹ The problem with Botswana, and the same holds true for South Africa, is that their relatively good performance vis-à-vis other African countries hides the fact that these countries have in the last decade been progressively subjected to similar standards of corruption and misrule as other African countries, even if to a lesser extent, than was previously the case. The resulting effect is that their previously high standards are dropping at an alarming rate.⁶⁰ The overall governance picture is one of a continent whose leaders seem to have recovered from the strategic retreat forced on them by the 1990 democratization wave. The removal of term limits in most constitutions—with many more states, such as Burundi, Congo DR, and Rwanda set to follow this reverse tide, the progressive transformation of ruling parties into dominant parties with all the trappings of the repressive one party system that go with this, and many more such openings for abuse of power have considerably limited the efficacy of the checks and balances associated with separating powers. Because of the slow but steady erosion of some of the critical gains in entrenching constitutionalism and democracy from the 1990s, the existence of these hybrid institutions of accountability that provide some prospects of arresting this backward slide needs to be taken seriously.

However, these hybrid institutions of accountability are no magical solution to the complex problem of abuse of powers. If anything, the South African experience shows that these institutions can steer and steady the faltering ship of African constitutionalism and democracy which is permanently being rocked in the stormy sea of abuses of powers controlled by Africa’s unruly leaders. Some of South Africa’s institutions have worked very well. Since 1994, elections in the country have been free and fair largely because of the fairly independent and commendable efficiency of its Independent Electoral Commission. The South African Human Rights Commission has also played a role in limiting human rights abuses. The indefatigable Public Protector has, against enormous odds and an avalanche of attacks,⁶¹ especially from the ruling party, intimidation, and even ‘official’ blackmail,⁶² tried to control a new culture of endemic (p. 342) corruption by politicians who give the impression that self-enrichment and not the general welfare of the people was the goal of bringing down apartheid.

It is in the light of these challenges that it has been argued in this chapter that unless the hybrid institutions increasingly appearing in modern African constitutions are conceived and crafted in a manner that will ensure their effectiveness, they will easily be captured, tamed, and reduced to acting as the handmaiden of Africa’s imperial presidents and a waste of scarce resources at a time when many citizens are living in abject poverty. The constitutions of Kenya and Zimbabwe, building on the South African constitution, have improved on the model. Nevertheless, three main suggestions have been made as a way of enhancing the effectiveness of these institutions.

First, the basic framework of these institutions must be laid down in the constitution and not reserved to ordinary legislation. Second, a number of fundamental principles which are designed to make these institutions genuinely independent (institutionally, functionally, and financially), competent (personnel) and effective (as regards the outcome of their processes) have been suggested. Third, the importance of the positioning of these institutions vis-à-vis the other branches of government has also been underscored. Whilst for certain purposes and with respect to certain matters, some institutions operating within the three branches of government will suffice, when dealing with what has been described here as Africa’s four pernicious evils, namely, maladministration, human rights violations, corruption, and electoral malpractices, there is a need for institutions that are manifestly independent of any of the three branches of government. What makes these institutions distinctive and potentially critical to Africa’s democratic project is their independence from the other branches, their ability to be both reactive and proactive and their accessibility to the most vulnerable in society. In many respects they will act as the intermediary institutions between the ordinary citizens and the three branches of government and give them an opportunity to directly seek solutions to their problems. But what’s more, these institutions are capable not only of countering the numerous threats posed by majoritarian abuses of power but also of protecting people against the consequences of their own naivety, ignorance, and impetuosity.⁶³

In many respects, these hybrid institutions not only complement the traditional accountability measures but also reflect the political, social, and constitutional changes (p. 343) that are taking place. They demonstrate the ability of the doctrine of separation of powers to adjust to modern realities as well as reflect the peculiar needs and governance deficits and risks of today. We are arguably moving towards a fourth branch of government. Unlike the other three branches, its primary purpose is not to ‘govern’ but to exercise certain investigative and regulatory functions. Operating outside the loaded environment of party politics, it is bound to ruffle some feathers through its investigations into sensitive and potentially embarrassing affairs of government. The danger for modern constitutionalism is not caused by the emergence and institutionalization of these independent hybrid institutions of accountability but rather by the failure of the other branches to recognize their entry, and re-orientate and adjust their policies and functions in order to accommodate them. They now constitute an unavoidable strategy for any serious effort to ensure an effective, accountable, and responsible government constrained by basic principles of constitutionalism. In fact, it may be said without fear of contradiction that without diverse robust and independent hybrid institutions of accountability to oversee the enforcement of modern African constitutions, the goal of entrenching a culture of constitutionalism and respect for the rule of law will remain a pipe dream for the majority of citizens.

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Footnotes:

¹ For example, Frank Vibert, The Rise of the Unelected: Democracy and the New Separation of Powers (Cambridge University Press 2007) points out that there are around 250 such institutions in the UK and 200 in the US. See also Andreas Schedler et al, The Self-Restraining State: Power and Accountability in New Democracies (Lynne Reinner 1999); Charles Kenney, ‘Reflections on Horizontal Accountability: Democratic Legitimacy, Majority Parties and Democratic Stability in Latin America’ (Paper prepared for the conference on Institutions, Accountability, and Democratic Governance in Latin America, Kellogg Institute for International Studies, University of Notre Dame, 8–9 May 2000) <http://kellogg.nd.edu/faculty/research/pdfs/Kenney.pdf> accessed 13 April 2015; John Ackerman, ‘Independent Accountability Agencies and Democracy: A New Separation of Powers?’ (Paper presented at ‘Workshop on Comparative Administrative Law’ Yale University, 8–9 May 2009) <http://www.law.yale.edu/documents/pdf/CompAdminLaw/John_Ackerman_CompAdLaw_paper.pdf> accessed 13 April 2015; Adam Przeworski et al, Democracy, Accountability, and Representation (Cambridge University Press 1999).

² See Ackerman (n 1).

³ See Sanford Berg, Ali Nawaz, and Rama Skelton, ‘Designing an Independent Regulatory Commission’ (2000) <http://warrington.ufl.edu/centers/purc/purcdocs/papers/0017_berg_designing_an_independent.pdf> accessed 13 April 2015.

⁴ See Susan Bartlett Foote, ‘Independent Agencies under Attack: A Skeptical View of the Importance of the Debate’ (1988) 27 Duke Law Journal 223.

⁵ See Mark Thatcher and Alex Sweet, ‘Theory and Practice of Delegation to Non-majoritarian Institutions’ (2002) 25 West European Politics 1.

⁶ See Vibert (n 1).

⁷ For example the Consumer Product Safety Commission (CPSC), Federal Trade Commission (FTC), and Federal Aviation Administration (FAA).

⁸ This provided the basis for the setting up of six independent institutions viz, the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities, the Commission for Gender Equality, the Auditor-General, and the Electoral Commission. The Chapter actually includes a seventh institution, the Independent Broadcasting Authority, but unlike the other six, this one is established by ordinary legislation.

⁹ See the constitution, 1996, ss 178 and 196 respectively. Other similar hybrid institutions include the National Prosecuting Authority (ss 179–80), the Financial and Fiscal Commission (ss 220–2) and the South African Reserve Bank (ss 223–5).

¹⁰ These are the Kenya National Human Rights and Equality Commission (art 59); the National Land Commission (art 67); the Independent Electoral and Boundaries Commission (art 88); the Parliamentary Service Commission (art 127); the Judicial Service Commission (arts 171–3); the Commission on Revenue Allocation (art 215); the Public Service Commission (arts 233–6); the Salaries and Remuneration Commission (art 230); the Teachers Service Commission (art 237); and the National Police Service Commission (art 246). The two independent offices are the Auditor-General (art 229) and the Controller of Budget (art 228). What is perhaps most surprising in the Kenyan approach is the fact that art 79 reserves the Ethics and Anti-Corruption Commission to be regulated by ordinary legislation. For reasons explained later about the importance of constitutional entrenchment, it is clear from this that there was no political will to fully commit the country to dealing with the cancer of corruption.

¹¹ These are the Zimbabwe Electoral Commission (ss 238–41); Zimbabwe Human Rights Commission (ss 242–4); Zimbabwe Gender Commission (ss 245–7); Zimbabwe Media Commission (ss 248–50); and the National Peace and Reconciliation Commission (ss 251–3). Although the Zimbabwe Anti-Corruption Commission appears under Ch 13, it is, according to s 256 subject to many of the provisions in Ch 12 (see ss 254–7).

¹² See, for example, the Judicial Service Commission (ss 189–91); the Civil Service Commission (ss 202–3); and the National Prosecuting Authority (ss 258–63).

¹³ See arts 268–88, which provide for the National Council for National Unity and Reconciliation, the National Observatory for the Prevention and the Eradication of Genocide, of War Crimes and of Crimes against Humanity, the National Council of Security, the Economic and Social Council and the National Council of Communication.

¹⁴ See arts 192–7.

¹⁵ See arts 161–6, which provide inter alia for a National Council of the Rights of Man, the High Authority of Broadcasting, and the Council of Competition.

¹⁶ Ch 6 of this constitution regulates ‘independent constitutional bodies’ which include the Electoral Commission (art 126), the Human Rights Commission (art 128), and the Commission for Good Governance and Anti-Corruption (art 130).

¹⁷ The exception to this is the Auditor-General, who operates from within the executive.

¹⁸ See Charles Manga Fombad, ‘The Enhancement of Good Governance in Botswana: A Critical Assessment of the Ombudsman Act, 1995’ (2001) 27 Journal of Southern African Studies 57.

¹⁹ See Christina Murray, ‘The Human Rights Commission et al: What is the Role of South Africa’s Chapter 9 Institutions’ (2006) 9 PER 123, citing UK National Audit Office documents.

²⁰ See Mary Buffington, ‘Separation of Powers and the Independent Governmental Entity after Mistretta v United States’ (1989) 50 Louisiana Law Review 121; Foote (n 4) 224.

²¹ Murray (n 19) 124.

²² She was described by the magazine as being ‘an inspirational example of what African public officers need to be’, Sulaiman Philip, ‘Thuli Madonsela on Time 100 Most Influential People list’ (Media Club South Africa, 25 April 2014) <http://www.mediaclubsouthafrica.com/democracy/3814-thuli-madonsela-on-time-100-most-influential-people-list> accessed 13 April 2015. This came after one of her numerous reports highlighting corruption and abuse of office, this time with respect to the misuse of public funds to renovate the private homestead of President Jacob Zuma under the pretext of security upgrades. In a report, ‘Most Popular Person in South Africa? Thuli Madonsela. The People’s Champion’ (SA People News, 22 March 2014) <http://www.sapeople.com/2014/03/22/most-popular-person-south-africa-thuli-madonsela-663/> accessed 13 April 2015, it was reported that: ‘Facebook fan pages have risen rapidly to support and commend Ms Madonsela for her courage and integrity, with the people of South Africa calling her their hero, a “younger version of Nelson Mandela” and requesting “Thuli for President”’.

²³ See Thatcher and Sweet (n 5) 1.

²⁴ See Foote (n 4).

²⁵ Bill De Maria, ‘African Anti-Corruption Agencies—Frolics in Failure’ (Paper presented at BEN-Africa Conference, Addis Ababa, 2007). The term, stand-alone or free-standing ACAs refers to those agencies that have distinct organizational identities separate from the normal state bureaucracy as opposed to the integrated ACAs which are part of departmental structures within the normal bureaucracy.

²⁶ Besides those mentioned above, stand-alone ACAs are found in Angola, Benin, DR Congo, Ghana, Guinea, Lesotho, Malawi, Namibia, Sierra Leone, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe. Integrated ACAs are found in Burkina Faso, Cameroon, Egypt, Mozambique, Senegal, and South Africa.

²⁷ See, for example, Susan Rose-Ackerman, Corruption and Government. Causes, Consequences and Reform (Cambridge University Press 1999) 158–62 and Andre Thomashausen, Anti-corruption Measures: A Comparative Survey of Selected National and International Programmes, Occasional Paper Series (Konrad-Adenauer-Stiftung 2000) 9.

²⁸ See, for example, Charles Manga Fombad, ‘Curbing Corruption in Africa: Some Lessons from Botswana’s experience’ (1999) 51 International Social Science Journal 241; Charles Manga Fombad and David Sebudubudu, ‘The Framework for Curbing Corruption, Enhancing Accountability and Promoting Good Governance in Botswana’ in Charles Manga Fombad (ed), Essays on the Law of Botswana (Juta & Co 2007) 82–126; Office of the Public Service Commission ‘A Review of South Africa’s Anti-Corruption Agencies’ (August 2001) <http://www.psc.gov.za/documents/reports/corruption/01.pdf> accessed 13 April 2015 and De Maria (n 25).

²⁹ See Bheki Mbanjwa, ‘ANC Won’t Scrap Cadre Deployment’ (IOL News, 17 July 2014) <http://www.iol.co.za/news/politics/anc-won-t-scrap-cadre-deployment-1.1721447#.VCvPd_mSyVM> accessed 13 April 2015, where the deputy president of South Africa, Cyril Ramaphosa has defended the ANC’s ‘cadre deployment’ policy, saying there was nothing wrong with the ruling party deploying its members to key positions because this was an international practice.

³⁰ See Murray (n 19).

³¹ See ‘Another Resignation at Cash Strapped Public Protector’ (SA Breaking News, 11 September 2014) <http://www.sabreakingnews.co.za/2014/09/11/another-resignation-at-cash-strapped-public-protector/> accessed October 2014, where it was reported that a number of senior officials in the Public Protector’s office had resigned because the salaries they were paid were lower than those for comparable positions in the public service.

³² For the official report, see ‘Secure in Comfort: Report on an Investigation into Allegations of Impropriety and Unethical Conduct Relating to the Installation and Implementation of Security Measures by the Department of Public Works at and in Respect of the Private Residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal Province’ Report No: 25 of 2013/14 <http://archive.org/stream/NkandlaReportThuliMadonselaJacobZuma/NkandlaReportThuliMadonselaJacobZuma_djvu.txt> accessed 13 April 2015.

³³ See Global Corruption Perception Index (Transparency International) <http://www.transparency.org/research/cpi/overview> accessed 13 April 2015.

³⁴ This is discussed in Fombad (n 28).

³⁵ See Mary Revesai, ‘Zimbabwe has Leeches Not Scorpions’ (New Zimbabwe) <http://www.zimbabwesituation.com/old/nov29_2006.html> accessed 26 October 2015.

³⁶ See Paul Hoffman, ‘Hawks or Eagles: What does South Africa Deserve? (Notes for an address to the Cape Town Press Club on 15 May 2012) <http://accountabilitynow.org.za/hawks-eagles-south-africa-deserve/> accessed 13 April 2015.

³⁷ For an example of South African cases where the courts have intervened and relied on the ‘governing principles’ in Ch 9 of the 1996 constitution to prevent any interference with the independence of these institutions, see Independent Electoral Commission v Langeberg Municipality 2001 (9) BCLR 883 (CC); New National Party of South Africa v Government of the Republic of South Africa and others 1999 (3) SA 191 (CC); and particularly Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC), where the Constitutional Court emphasized the meaning and importance of these institutions being independent.

³⁸ See further, Charles Manga Fombad, ‘Some Perspectives on Durability and Change under Modern African Constitutions’ (2013) 11 International Journal of Constitutional Law 382.

³⁹ See an example of such an obligation in s 2 of the South African constitution, which states that, ‘this constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’ (emphasis added).

⁴⁰ See, for example, arts 34–41 of the constitution of Ghana; and ss 13–24 of the constitution of Nigeria.

⁴¹ See Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 (4) SA 744 (CC).

⁴² The South African Constitutional Court case of New National Party of South Africa (n 37), discussed later explains this point further. More generally, see signs that holding back funds is being used to undermine the work of the South African Public Protector. See further, for example, in ‘Public Protector hampered by dire shortage of funds’ Legalbrief TODAY, Issue No 3609 (2 October 2014), where it was reported that the South African Public Protector’s office is in dire straits and needs more money to finance operations and keep staff from leaving. Madonsela says the number of cases she deals with is disproportionate to the financial and human resources available to her office. Some investigators handle up to 500 cases and she claims the lack of resources delays the finalization of investigations and that this could lead to the erosion of public confidence in the institution.

⁴³ See Murray (n 19) 132–3.

⁴⁴ The Special Parliamentary Committee on Governance and Accountability proposed here does not appear in any modern African constitution. It is however considered as an important body to receive quarterly reports from all the hybrid independent institutions of accountability, monitor their activities, and ensure accountability. The constitution should expressly state that it should be constituted in a manner that ensures an equal number of representatives from the ruling party and from the opposition parties and be chaired by a member from the opposition parties. It should have the powers to subpoena anybody to appear before it and should be able to co-opt such experts as it might need to assist it discharge its functions.

⁴⁵ It is probably only the Zimbabwe constitution of 2013 which in ss 236 and 237 comes closest to providing an appointment procedure that could limit but not in a very satisfactory manner, the avenue for politically motivated appointments.

⁴⁶ See Geoff Budlender, ‘20 Years of Democracy: The State of Human Rights in South Africa’ <http://blogs.sun.ac.za/law/files/2014/10/annual-human-rights-lecture-2014-adv-g-budlender-sc.pdf> accessed 13 April 2015, who in commenting on South Africa’s institutions says: ‘A disturbing feature of recent years has been the weakening and undermining of those institutions. We have had too many appointments in which a key qualification for appointment seems to be a willingness to protect those in power, or loyalty to a particular faction.’

⁴⁷ 2001 (9) BCLR 883 (CC).

⁴⁸ 1999 (3) SA 191.

⁴⁹ New National Party of South Africa (n 37) per Langa DP at para 78.

⁵⁰ ibid [98].

⁵¹ ibid [162].

⁵² 2011(3) SA 347 (CC).

⁵³ See further, Joey Berning and Moses Montesh, ‘Countering Corruption in South Africa. The Rise and Fall of the Scorpions and Hawks’ (2012) 30 SA Crime Quarterly 1–10.

⁵⁴ 2011(3) SA 347 (CC) para 207.

⁵⁵ [1992] BLR 119.

⁵⁶ ibid [154].

⁵⁷ ibid.

⁵⁸ See Budlender (n 46) 24, who accurately captures the mood when he states: ‘I do not think it is alarmist to say that we are now in the midst of a struggle about whether we will remain a genuine constitutional democracy. There are a number of symptoms of this. Key institutions of state have been undermined and weakened. Attempts are made to capture and use state institutions for anti-constitutional purposes … There is an “emerging trend towards security-statist approaches to governance.” Corruption is a real problem. In critical areas, Parliament is failing to perform its constitutional function of oversight of the executive, preferring instead to protect those in power.’ (Emphasis in original and footnotes have been excluded.)

⁵⁹ See, for example, Kenneth Good, ‘The Presidency of General Ian Khama: The Militarization of the Botswana “Miracle”’ (2009) 1 African Affairs 315; Yvonne Ditlhase, ‘Khama Inc: All the President’s Family, Friends and Close Colleagues’ (Mail & Guardian, 2 November 2012) <http://www.mg.co.za/article/2012-11-02-00-khama-inc-all-the-presidents-family-friends-and-close-colleagues> accessed 12 April 2015.

⁶⁰ See, for example, Liesl Louw-Vaudran, ‘Botswana’s Clean Image Hides the Dirt’ Mail & Guardian (3 October 2014) 24, where the writer states that ‘A group of six senior MPs of the BDP [the ruling Botswana Democratic Party] broke away from the party in 2010, claiming that democracy in Botswana has been threatened since Khama came to power’. The writer adds that ‘Khama weathered the storm and remains popular, thanks to generous social grants and a relatively stable economy’ and will easily win the October 2014 elections in spite of increasing repression, especially of the media.

⁶¹ See a summary of recent attacks in Gareth Van Onselen, ‘Adding up the ANC’s Attacks on Madonsela’ Sunday Times (Johannesburg, 14 September 2014) 8.

⁶² Thuli Madonsela, the Public Protector, has in the past few years come under sustained criticism and attacks from top ANC and government officials. In September, the Deputy Minister of Defence and Military Veterans, Kebby Maphatsoe, described her as being a CIA plant and of undermining the ANC and the government to create a puppet regime for the US. Describing her as acting like a counter-revolutionary, he is quoted as having said: ‘They are even using our institutions now … These Chapter 9 institutions were created by the ANC but are now being used against us, and if you ask why, it’s an agenda of the Central Intelligence Agency. Ama (the) Americans want their own CEO in South Africa and we must not allow that’. After widespread criticism of the remarks which also almost provoked a diplomatic row with the US government, and following protestations by the Ambassador, the ANC forced the Deputy Minister to offer a somewhat limited apology for his comments. See further, Baldwin Ndaba, ‘Thuli a CIA spy, says deputy minister’ (IOL News, 8 September 2014) <http://www.iol.co.za/news/politics/thuli-a-cia-spy-says-deputy-minister-1.1747300#.VC0hUvmSyVM> accessed 13 April 2015.

⁶³ Weaknesses like corruption, incompetence, and non-delivery of basic services which would ordinarily lead to a party being voted out of office have not affected the popularity of parties such as South Africa’s ANC and Zimbabwe’s Zimbabwe African National Union-Patriotic Front (ZANU-PF) because of their liberation credentials and the fact that very many people still associate them with their freedom from the horrors of white minority rule and the human rights abuses of that era. For example, in a recent survey, 74% of ANC supporters believed that the party should be supported regardless of the fact that it has not delivered on its promises of a better life for its people. See Gareth Van Onselen, ‘Blaming Apartheid is No Longer a Credible Excuse’ Sunday Times (Johannesburg, 30 March 2014) 10. Yet, these are the people who suffer most from bad governance.

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