Spotlight on accountability III

INTRODUCTION

The first two briefs in this series described some of the theoretical aspects that inform the study of accountability. Another way to look at accountability is to delve into how it manifests in the real world.

Much can be gained from understanding how various types of accountability work practically. Doing so helps us to make sense of the processes involved and become aware of who administers the mechanisms (and whether there are opportunities for others to become involved in the process). It also allows for an appreciation of their relative strengths and weaknesses: it may well be that various avenues to achieve accountability in a broader sense exist, and that some mechanisms are more effective than others.

Take, for example, the situation where a citizen is detained by police and is assaulted while in custody. That person has the option to lay a complaint with the Independent Police Investigative Directorate, which is an administrative accountability mechanism. She may also elect to pursue criminal or civil charges against the responsible police officer, which are forms of legal accountability. The processes and outcomes of these two types of accountability differ in significant ways and so the victim will have to weigh these up carefully before taking steps in either (or both) of these forums.

TYPES OF ACCOUNTABILITY

Bovens offers a number of ways to characterise types of accountability.[1] A classification based on forum takes into account to whom the account is to be rendered. A classification based on actor considers which party is responsible to render the account. A classification based on subject matter is exactly that – it “concerns the question of the aspect of the conduct about which information is to be provided”.[2] The last classification is those based on the nature of the obligation, which considers why the actor is compelled to render the account.

All four of these classifications yield important insights about accountability, however for the purposes of this brief, only the first two will be considered. This is because they address two of the main concerns of the hypothetical example provided above – firstly, to whom the citizen would turn so that those responsible for her assault could be held accountable, and secondly, who is responsible to the citizen for what happened to her.

FORUM-BASED CLASSIFICATIONS

Accountability, when characterised by forum, includes:

Political accountability. This refers to the exercising of political control or oversight, and is a feature of democracy: voters elect popular leaders, forming Parliament. From that body of representatives, a number are selected to form a cabinet of ministers. These executive ministers, in turn, delegate their authority to civil servants or to other administrative bodies.

Political accountability flows along the same lines, but in the opposite direction. Elections can be used as a mechanism to for elected officials to remain accountable to the electorate, thereby ensuring political accountability (although the effectiveness of this mechanism is somewhat diminished if the relevant official does not seek re‑election, and it could also be affected by the electoral system).[3]

Administrative accountability is achieved by strategies, administrative rules, budget reviews or performance management systems. These should be based on established standard operating procedures, and be strictly and consistently applied.[4]

Citizen accountability – These consist of participation laws and deliberative forums as means by which citizens can hold government administrators accountable. Bovens, Schillemans and Goodin refer to this as “social” or “horizontal” accountability.[5]

The internet has provided more opportunities for citizen accountability, including by making information more easily accessible and by being a conduit for public input and feedback.

Some accountability theorists have pointed out that the use of these horizontal mechanisms cannot be a substitute for more traditional forms of top-down accountability because they do not involve meaningful opportunities for judgment and sanctioning.[6] While reporting performance against benchmarks to the public can be good for transparency, it may only have an impact if it is, for instance, brought to the attention of a journalist or citizen activist that calls upon a forum such as a parliamentary committee to hold the agency in question to account.[7]

Legal accountability is based upon obligations established in the law, such as by statute, common law, or the Constitution itself. Bovens notes that it is “the most unambiguous type of accountability, as the legal scrutiny will be based on detailed legal standards, prescribed by civil, [criminal], or administrative statutes, or precedent”.[8]

The use of legal mechanisms is gaining increasing importance as a form of accountability Two reasons that have been proposed for this are that social relations are becoming increasingly formalised, and that there is greater trust placed in courts than in parliaments.[9]

The latter reason is a potential explanation for the rise of “lawfare” in South Africa, which has been described as “the use of litigation as ‘a weapon of the weak’.”[10] The use of judicial measures can provide wide, transparent and open avenues for citizens to hold governments to account. However, the capabilities of this form of accountability can be limited by resource constraints, the great time it takes to conclude legal proceedings and rules of evidence. It should also be considered that the effectiveness of judicial mechanisms relies on the extent to which the rule of law is respected in a particular society.[11]

Professional accountability occurs when public officials rely on employees or contractors possessed of specialised skills in order to provide appropriate solutions for technically difficult and complex problems. Such persons will ordinarily belong to professional associations which make adherence to a code of conduct an enforceable requirement for membership. Those professional associations can monitor their members’ conduct and receive complaints from the public, which can result in disciplinary sanction for those who do not comply.[12]

An issue that arises in relation to forum-based classifications is “the problem of many eyes”.[13] Public officials may find themselves being called to account in a number of forums in respect of the same action. Each of these forums may require different forms of information and apply different criteria, which can lead to different outcomes. For instance, in the example above, proceedings in the three forums (IPID, civil courts, and criminal courts) could result in disciplinary sanction, the award of damages, or even a custodial sentence, respectively. The standards applied would be derived from, respectively, police codes of conduct, common law principles of delict (which requires proof on a balance of probabilities), and criminal law principles relating to assault (which requires proof beyond reasonable doubt).

Notwithstanding the problem of many eyes, the existence of multiple forums does mean that if certain mechanisms are defective, the person seeking accountability could find redress in another forum, albeit of a different kind. As discussed above, the fact that actors implicated in state capture received minimal political or administrative sanction could arguably have been the reason that opposition parties, civil society and others have turned to the courts.

ACTOR-BASED CLASSIFICATIONS[14]

Accountability, when classified by actor, includes:

Corporate accountability, which considers the organisation as an actor. This form of accountability takes the organisation as a whole. In the private sector, companies are imbued with juristic personality. They can sue and be sued in their own name. Likewise, public organisations may also be also be of such a character that they can be held responsible as a single unit. This form of accountability can dispense with the need to single out an individual actor. Of course, it may be that the organisation is held accountable as a whole by some external authority, and it then undertakes a review using its own internal mechanisms to determine individual responsibility.

Hierarchical accountability, which is a “one for all” type of accountability. This refers to the situation where those persons at the top of an organisational structure are held accountable for the actions of their subordinates. It is dominant in political accountability relations. Most public organisations make use of hierarchical accountability, such as where the Minister takes responsibility for failings by her department. As in the case of corporate accountability, while the person at the top of the structure may take be responsible to an external authority, subordinates can then be called upon to account to their superiors.

Collective accountability, in which accountability is taken as “all for one”. This applies in situations where any member of an organisation can be held for the failing of the organisation as a whole. This is an uncommon approach, particularly as concerns rise to moral appropriateness. Bovens observes that:

Collective arrangements of personal accountability are barely reconcilable with legal and moral practices and institutions current in modern western democracies. They are not sophisticated enough to do justice to the many differences that are important for the imputation of guilt, shame, and blame…A collective accountability strategy will only be appropriate and effective in specific circumstances, for example with small, collegiate public bodies.”[15]

Individual accountability, in which each person is accountable for herself alone. In such circumstances, individuals are held liable for her part played in the wrongful or bad decision. This involves a judgment based on actual contribution, as opposed to the position that she holds.

Many actors can give rise to “the problem of many hands”. This problem arises where more than one person is responsible for the conduct forming the subject of the accountability enquiry. This can happen in government departments where multiple layers of sign-off are required for a decision – if that decision is challenged, it may not be possible to pinpoint with precision where the wrongdoing occurred. Another problem is where people are involved in a decision or the development of a policy but then subsequently leave before implementation. If the decision or policy fails, they cannot be held accountable.

Take, for instance, the hypothetical example of assault by a police officer. While the assault may have been perpetrated by one officer, insufficient oversight over the conduct of police officers in that station, or even more generally in that district, may allowed an opportunity for that one assault. Police brutality would then be part of a broader systemic issue, for which many decision-makers would be responsible. It may be appropriate, then, to not only take steps to hold that one officer accountable, but also to take steps against others in the chain of command.

CONCLUSION

The object of this brief series was not to provide an in-depth description of all relevant theories that have been developed about accountability. Rather, it was to provide a bird’s eye view of some of the considerations that have informed how accountability has been approached in a theoretical sense, in a way that can be understood by even those who are not familiar with principles of governance.

How do the accountability mechanisms in place at South African public institutions match up? Or mechanisms at private organisations, for that matter? Those questions are rich fodder for entire studies. What is clear is that work needs to be done in bolstering accountability generally. South Africa needs more efficient, effective, and resilient accountability mechanisms that are fit for purpose. The costs of neglecting accountability are too large and severe to contemplate.

Cherese Thakur, Legal Researcher, HSF, 23 January 2020

[1] 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.

[2] Ibid.

[3] K Wang “How to make sense of government accountability” World Bank Blogs, accessed at https://blogs.worldbank.org/governance/how-make-sense-government-accountability on 22 August 2019.

[4] Ibid.

[5] See Bovens, Schillemans, and GoodinOxford Handbook of Public Accountability (2014) Oxford University Press.

[6]Bovens op cit note 1.

[7] Edwin OkeyIjeoma and Antony MatembaSambumbu “A framework for improving public accountability in South Africa” Journal of Public Administration (2013) 48(2) 282 at 285.

[8]Bovens op cit note 1.

[9] Ibid.

[10] See Hugh Corder and Cora Hoexter “’Lawfare’ in South Africa and its effects on the judiciary” African Journal of Legal Studies 10 (2017) 105–126. For an in-depth exploration, see Dennis Davis and Michelle Le Roux Lawfare: Judging Politics in South Africa 2019 Jonathan Ball Publishers, Johannesburg.

[11]Ijeoma and Sambumbu op cit note 7.

[12] For a consideration of how professional services industries were complicit in state capture, see the brief series by the author, the first instalment of which can be accessed at https://hsf.org.za/publications/hsf-briefs/professional-service-industries-facilitating-malfeasance-for-a-fee-i-understanding-professions.

[13]Bovens op cit note 1.

[14] Ibid.

[15] Ibid.