Good Governance Protocol for the local sphere of government

4 November 2021

The disappointingly low turnout of voters in the local government elections hastily held on 1 November 2021 and the universally acknowledged need for renewal and change ought to spur those elected by a minority of possible voters to improve the offering of local government during their term of office.

As a demonstration of their good intentions it is suggested that all newly elected local government structures, from the mightiest metros down to the most humble of municipalities have it within their gift to adopt a protocol on good governance at their first meeting or as soon as possible.

More coalition governments at local level are going to have to be assembled in the days and weeks ahead than has ever been the case in the history of the democratic project in SA. This development is a potentially healthy one, provided that the necessary coalition agreements include the good governance protocol as a binding basis for entering into the coalition needed to govern effectively and efficiently.

Multi-party democracy of the kind contemplated in the Constitution of SA works better if a dominant party state at national, provincial and local levels is not a long-term feature of the political landscape. It is to be anticipated that in the 2024 elections no single party will attain an outright majority and that coalition politics will become the order of the day in the national and provincial spheres too. This likely development implies that it would be as well to get coalition politics onto a sound footing with immediate effect so that possible coalitions post the 2014 national and provincial voting are seamlessly put in place in the light of the good experiences in coalitions formed now at local level.

Any sound good governance protocol ought not to be a source of controversy if those elected regard themselves as in office to serve the needs of the people who elected them rather than to enrich themselves and entrench their patronage possibilities.

The wording of a good governance protocol is the work of those elected in each and every local government structure, whether or not coalition government is needed. The duty of the voters, and those who chose not to vote, is to hold elected politicians to account for the protocols that they adopt or decline to adopt.

Fealty to the values and principles of the Constitution, to the binding nature of decisions of our courts and to the underpinning ethos of ubuntu (people are people through other people) and batho pele (people first) all have to be combined at the core of any protocol. Those who have entered politics for reasons other than the proper implementation of the Constitution will be confronted with a difficulty decision when required to subscribe to the protocol.

Public trust in naysayers, already at a low ebb, will wane further and the necessary confidence in the ability of the municipalities that do not subscribe to effect service delivery properly will be undermined.

A specimen of the wording of the good governance protocol, as set out below, can be used to illustrate the advantages to the ratepayers of the nation of insisting that their own and all municipal authorities adopt a version as their tone setting protocol

GOOD GOVERNANCE PROTOCOL

Adopted by the municipal council of … on … November 2021

Recognising:

The supremacy of the Constitution and the rule of law.

The principles of co-operative government and intergovernmental relations set out in C 41.

The founding provisions of our sovereign democratic state as set out in C 1 and with specific emphasis on our multi-party system of democratic government to ensure accountability, responsiveness and openness.

The requirement that the state must respect, protect, promote and fulfil the human rights [C 7(2)] guaranteed to all in Chapter Two of the Constitution.

The need to deliver services relating to human rights in accordance with the Bill of Rights in the municipal sphere.

The binding nature of the values and principles that inform public administration in South Africa as set out in Chapter Ten of the Constitution.

The need, under the rule of law, for municipal decision making to be rational and to serve legitimate purposes of government in every sphere.

The urgent need to recover, by way of civil and criminal proceedings, the proceeds of state capture and other corrupt activities so that funds and assets recovered can be utilised to better serve the people of South Africa using ubuntu and batho pele as the guiding ethos.

The municipality commits itself to:

Governing in accordance with the principles and precepts set out above.

Require all employees of the municipality to sign the pledge (https://accountabilitynow.org.za/pledge-members-public-administration-south-africa/. )

Hold itself and its employees to the provisions of the pledge.

Ensure that procurement of goods and services by the municipality accord with the principles of C 217 and with the Municipal Finance Management Act.

Lobby national government urgently to reform the criminal justice administration so as to enable it to deal with serious corruption effectively and efficiently.

Take urgent steps to recover, in civil and criminal proceedings, any funds or assets to which it is entitled due to malfeasance in the past and to use the amounts so recovered for the purpose of improving service delivery of the kind contemplated in the Bill of Rights.

Facilitate participation in governance by those it governs.

Political parties, elected councillors, independents in office and all involved in local government should have no difficulty with subscribing to the protocol, as adapted to suit specific conditions in specific municipalities.

Those who resist and refuse to sign the protocol will take a risk that their political shelf life will be short. By declining to sign they reveal their lack of commitment to the constitutional project in SA and their ulterior motives for entering politics.

All major political parties already acknowledge the need for reform to deal with corruption. The urgency of the matter requires that it be debated as soon as possible. There is already draft legislation before parliament and the NEC of the ANC has instructed cabinet to deal with the matter of corruption urgently. The details appear here: https://accountabilitynow.org.za/corruption/.

Mustering the political will to do what is needed ought not to be a major stumbling block now that the voice of the people has been heard in the municipal elections. Going softly and slowly on corruption is a recipe for becoming unelectable in 2024. No sane political party deliberately operates in a way that makes it unelectable. The binding nature of the findings in the Glenister cases has long been overlooked by government. It is high time this oversight is addressed.

Including the protocol in the terms of the coalition agreements that will be required in hung municipalities is also a way of ensuring that the fickleness that has dogged coalitions in the past will be dealt a mortal blow.

Councillors who understand and act on their constitutional obligations will know that cadre deployment in the public administration will have to become a thing of the past. It is a racing certainty that the Zondo Commission will proscribe this form of cadre deployment by referring to the binding authority in the Mlokoti case in which cadre deployment of municipal managers was held to be illegal and unconstitutional. Merit based appointments of the kind contemplated in section 195(1)(h) of the Constitution ought to become the order of the day, and not only in the municipal sphere of government.

Paul Hoffman SC is a director of Accountability Now