Spotlight on accountability II

23 January 2020

The first brief in this series described some of the key aspects of accountability. It noted that while definitions differ between various disciplines, six elements – namely, explanation, externality, retrospectivity, evaluation, authority (alternatively, hierarchy), and reward/punishment – can be said to form a minimum conceptual core, the term has expanded to include other concepts, such as responsiveness.

This brief will consider how accountability can be applied in practice through the use of accountability mechanisms by way of an introduction to the principal-agent problem. Moreover, it will provide guidance on how these mechanisms can be assessed for their merits and weaknesses. Evaluating such mechanisms for effectiveness is key: well-functioning accountability mechanisms have the potential to curb not only corruption within public entities, but also to weed out misconduct, malfeasance, and incompetence.

THE NEED FOR ACCOUNTABILITY REGIMES

HSF Research Fellow Professor Alex van den Heever has developed a framework that can be used to understand accountability in an institutional setting – a “conceptual framework for pragmatic decision-making”, which can be used to evaluate accountability regimes in practise.[1]

According to him four questions should be asked:

When do you need an accountability framework (i.e. what features of a system make it necessary?)?

What are the key features of an accountability framework?

How do you apply the key features to an actual instance?

How do you assess the adequacy of an existing accountability framework?

The answer to the first question, according to Prof van Heever, is when you identify a principal-agent problem. The ‘principal-agent problem’ is a phrase well-understood by political scientists and economists. It refers to the problem of aligning an agent’s actions to the goals of the principal in the absence of continuous direct control of the agent. In other words, one person (the agent) is able to make decisions that will have an impact on another person (the principal) – but the agent is faced with the question of whether to act in her own self‑interest or in the interests of the principal. The principal can make decisions that affect the incentives of the agent to take decisions in the interest of the principal.[2]

This problem can manifest itself in, for instance, employees acting as agents for their employers, the principal. A corrupt traffic officer, for instance, when confronted with upholding the law or taking a bribe, may prioritise her own self-interest and take the bribe. Accountability mechanisms are therefore put in place to address that problem.

In a broader sense, however, elected officials are agents of the public, which is the principal. State capture manifested the principal-agent problem on a grand scale, in that key decisions (such as the appointment of certain leaders, or the awarding of tenders) were not taken in the public interest, but in the interests of the agents, that is, political office-bearers.

Prof van den Heever notes that:

“The gap is made up of performance requirements (i.e. what the agents are meant to be doing for the beneficiaries). To close the gap you need, for instance, specific performance parameters, information on performance and an ability to apply consequences to any non-performance. Where the gap is small, simple accountability approaches can be used. Where the gap is large, a regime may need to be installed.”[3]

WHAT FORMS CAN ACCOUNTABILITY REGIMES TAKE?

Speaking at a 2013 roundtable on accountability hosted by the Helen Suzman Foundation[4], Prof van den Heever reduced accountability mechanisms to a number of core elements, as follows:

General category of oversight. This is exercised by supervisory structures of one form or the other. It is, in essence, any person that is introduced into an accountability framework to supervise any party which is in a position of trust. Formal structures should operate at arm’s length from the person being supervised, and should have no conflicts of interest with the body being supervised.

Performance parameters. These are norms that are established, against which people in positions of trust must perform. These are important – their absence (or removal) creates space for arbitrary discretion to be exercised.

Compliance within a framework. This is the system of sanctions and rewards for performance against the established performance parameters. This system must be applied even-handedly and not be subject to conflicts of interest.

Transparency. These involve a range of things, from reporting systems through to the media. Formal reporting establishes transparency.

Performance parameters and compliance within accountability frameworks are essential. They establish the field of play and ensure that the rules are enforced consistently. For example, in the context of public education, there were no uniform rules regarding the minimum standards that school infrastructure should meet to ensure that the constitutional right of access to education is being fulfilled. Civil Society NGO Equal Education, through public campaigning[5] and litigation[6], were able to compel government to issue a set of minimum norms and standards. These standards now serve as a framework within which government must operate in determining strategy and allocating resources in the context of school infrastructure. And if accountability within the Department of Education is not exercised adequately with regard to these standards, they can be enforced through another accountability forum: the courts.

It is important to assess the sufficiency of accountability frameworks. Van den Heever explains that insufficient accountability frameworks lead to power imbalances, essentially leading to a situation where the agent has too much discretion and can abuse their powers. The goal of accountability frameworks is to restrict the discretion exercised by the agent to pursue only those goals approved by the principal and not those goals that serve the agent alone. An important principle that flows from this is that an agent should never been permitted to act in their own private interests to the disadvantage of the principal.

ACCOUNTABILITY MECHANISMS IN ACTION

Suppose you are tasked with setting up an accountability mechanism. You have authorised an independent-minded, fair, and impartial person to exercise oversight by issuing rewards or punishment; put in place performance parameters against which they will measure conduct, and made provision for reports to be issued on the outcome of the accountability exercise. In other words, your accountability mechanism is in place. The question is – what steps must you now take?

Accountability mechanisms function by way of following a process which can be summarised in four steps: information, discussion, judgment, and consequences/sanction.[7]

In the information phase, the person being evaluated (actor) states what she done before the person(s) performing the evaluation (evaluator). This could take the form of an oral account, and could refer to reports and self-evaluation. The actor and evaluator will then discuss the information presented – this is an opportunity for questions to be asked and answered. Importantly, the actor can be called upon to provide reasons for her actions, which could have an impact in the third and fourth phases – judgment and consequences. The judgment phase is an opportunity for the evaluator to exercise transparency by providing reasons for her judgment. Consequences can take the form of bonuses or rewards in the case of a favourable judgment, or corrections, disciplinary actions, or removing the actor from her position, where the judgment is unfavourable.

Here, we note two things: First, the quality of the first and second phases will impact on the quality of the third and fourth ones. In order to issue a good judgment, the evaluator requires adequate and sound information to be presented to her as well as meaningful discussion with the actor. One way, then, to assess the effectiveness of an accountability mechanism would be to look at the standard of information provided – was reliable data used? Was the information based on the actor’s own assessment alone or was it independently corroborated? Was a full picture of the facts provided? Then, the quality of the discussion could be examined – did the evaluator ask insightful questions? Was the actor given reasonable opportunity to respond? Was she evasive or forthcoming in her response? Were follow-up questions asked?

The second point to note is that in the real world, it is unlikely that the accountability process will follow this four-step process exactly: the phases may take place at the same time, happen in reverse, or one of the elements may be skipped. The value of setting out the process in this way therefore lies in serving as a heuristic device that “helps researchers analyse the messy realities of real-world accountability” and “to locate accountability deficits”.[8]

ANALYSING ACCOUNTABILITY MECHANISMS

Accountability theorist Mark Bovens provides some pointers on how accountability mechanisms can be assessed for adequacy.[9] He notes that such an analysis can happen on two levels – the first of which he calls “procedural or internal adequacy”. This involves an internal evaluation of the propriety of a particular accountability mechanism or of a specific, concrete accountability process. The second level is “systemic or external adequacy”, and involves an evaluation based on the functions that accountability arrangements fulfil in political and administrative systems.

Procedural adequacy

The operative question in relation to procedural adequacy is: does the procedure comply with the minimum due requirements of an accountability procedure? This involves analysing the mechanism using questions, such as the ones discussed above. The aim is to ensure that:

The forum exercising accountability receives reliable and adequate information in a timely manner;

The person being subjected to the mechanism is aware of the standards that are being applied and has an adequate opportunity to explain and justify her conduct; and

The forum is independent and can, in fact, pass judgment that is proportionate and relates to the facts.

Systemic adequacy

In relation to systemic accountability, the key question relates to the actual effects of the mechanism. Inadequacies may arise in the form of accountability deficits. These can include a lack of sufficient accountability arrangements, or of accountability excesses: too many accountability mechanisms working at once may work against each other.

Bovens approaches his analysis of systemic accountability from three points of view: the democratic perspective, the constitutional perspective, and the cybernetic (learning) perspective.

From a democratic perspective, the broader question is whether the accountability mechanism adds to the possibilities open to voters, parliament or other representative bodies to control the executive power. This gives rise to two sub-questions:

Do the accountability mechanisms help to provide political principals with sufficient information about the behaviour of their agents?

Do they offer enough incentives to agents to commit themselves to the agendas of their democratically elected principals?

From a constitutional perspective, the central question is whether the accountability mechanism is able to contribute to the prevention of corruption and the abuse of powers. Here, the sub-questions include:

Do the accountability mechanisms have sufficient information as well as further investigative powers?

Do they have incentives to engage in proactive and alert account holding, as well as proactive and sincere account-giving?

Are the sanctions strong enough to have preventative effects?

Do they help to discourage corruption and improper governance?

From the cybernetic perspective, the central question concerns the degree to which accountability arrangements stimulate administrative bodies and officials to achieve a higher awareness of the environment, increase self-reflection and induce the ability to change. This gives rise to the following sub-questions:

Does the accountability mechanism contribute to the availability of information about administrative actions?

Does it stimulate internal reflection and the ensuing learning conduct in administrative bodies and those holding public office?

Does it stimulate the accountability forums and the administrative actors to the institutionalisation and dissemination of lessons learned?

The set of questions provided by Bovens from these three perspectives are a useful means by which to understand and analyse external accountability mechanisms. However, he cautions that they do make evaluating accountability arrangements an “equivocal exercise” – scoring well from one perspective does not mean that the mechanism succeeds from other perspectives. Indeed, they may operate at cross-purposes, where “what is considered beneficial from one perspective, may very well be judged detrimental from another perspective”. This is the tension that gives rise to the counter-majoritarian dilemma, for example, where judicial review succeeds from a constitutional perspective but fails from a democratic perspective.

However, by asking ourselves some of the questions listed, we can “tweak” existing accountability mechanisms. For instance, we can examine the incentives generated by certain accountability mechanisms and apply innovative solutions to them.

ARE ACCOUNTABILITY MECHANISMS WORKING?

Edwin Ijeoma and Antony Sambumbu have pointed out that while various public accountability measures have been conceptualised and implemented in South Africa’s public sector institutions, the effectiveness of these measures have been limited.[10]

They have identified issues arising from the implementation of accountability measures as including:

Lack of political interest;

Political interference;

Inexperience and a lack of skill of members;

Lack of resources;

The suppression and undermining of minority views in bodies such as the Standing Committee on Public Accounts; and

“Colleague’s protectionism” which prevents exposure of misconduct.[11]

If government is committed to accountability, these issues need to be taken seriously. Some of them – such as lack of resources and skills deficits – can be addressed through policy changes and by introducing programmes and systems. However, political will is absolutely vital to make accountability mechanisms work, and it appears that this, more than anything else, is in short supply. This leads to an almost circular set of needs, in that political actors need to be held accountable for ensuring that other actors are held accountable. In a democracy, the main way that this is done is through the electoral system.[12]

CONCLUSION

This brief has provided guidance on how to assess accountability mechanisms, albeit at a somewhat abstract level. In contrast, the third and final brief in this series will consider accountability as it presents in the world by categorising it, and examining how these types can be used in different ways to achieve desired accountability outcomes.

Cherese Thakur, Legal Researcher, HSF, 23 January 2020

[1] My thanks go to Prof van den Heever for providing his insights into the issue through email correspondence.

[2] Gailmard “Accountability and Principal-Agent Theory” in Oxford Handbook of Public Accountability Bovens, Goodin and Schillemans. (2014)

[3] Prof Alex van den Heever, in correspondence with the author.

[4] See Helen Suzman Foundation “Quarterly Roundtable Series: Accountability” June 2012, accessed at https://hsf.org.za/publications/roundtable-series/qrs-accountability.pdf on 22 August 2019.

[5]See https://equaleducation.org.za/wp-content/uploads/2016/07/Timeline-Final-Digital.pdf for a timeline for their campaigns.

[6]Equal Education and Another v Minister of Basic Education and Others [2018] ZAECBHC 6; [2018] 3 All SA 705 (ECB); 2018 (9) BCLR 1130 (ECB); 2019 (1) SA 421 (ECB).

[7] Modified slightly from the description of the process provided by Gijs Jan Brandsma and Thomas Schillemans ‘The accountability cube: Measuring accountability” (2013) 23(4) Journal of Public Administration Research and Theory 953 at 955.

[8]Brandsma and Schillemans op cit note 4 at 956.

[9]Mark Bovens “Public Accountability: A framework for the analysis and assessment of accountability arrangements in the public domain”. Unpublished paper for Connex, Belfast 22-23 September 2005. Last accessed at https://www.scribd.com/document/144474088/Bovens-Public-Accountability-connex2 on 22 August 2019.

[10] Edwin OkeyIjeoma and Antony MatembaSambumbu “A framework for improving public accountability in South Africa” Journal of Public Administration (2013) 48(2) 282.

[11]Ibid.

[12] This will be discussed in greater detail in a further brief.