Last week, the Constitutional Court ruled that minister Bathabile Dlamini is liable to pay 20% of the costs of the constitutional challenge brought against the SA Social Security Agency (Sassa).
The court instituted an inquiry into Dlamini’s conduct to determine if there were grounds for personal liability on her part following her less than impressive presentation before the highest court during the hearing of the matter.
As has become the trend over the past few years, it has devolved on the courts to determine and enforce accountability in the case of politicians who have failed in their official and constitutional duties, a task that should ideally be carried out by political parties.
In his report, chair of the inquiry, judge Bernard Ngoepe found that Dlamini withheld information about her role in appointing work streams and the individuals who lead them. He concluded that she didn’t disclose these facts for fear of being held personally liable for the costs of the case.
As the political principal heading the social development portfolio at the time of the debacle that jeopardised the wellbeing of millions of South Africans who rely on the system, she knew that the buck stopped with her.
In a constitutional democracy such as ours, provision is made for horizontal accountability and vertical accountability. Horizontal accountability refers to the separation of powers, where different branches of government act as a check and balance on each other. The legislature ought to hold the executive to account.
Vertical accountability is the ability of the electorate to hold public representatives to account. The government ought to be responsive and answerable to the citizenry. Public officials are obliged to provide justification for the decisions they make, the actions they have taken and their failures.
Public officials have to answer questions – even uncomfortable ones – that assist in the investigation of their conduct, actions, failures and attainments. This is what oversight and monitoring consists of. Pleading ignorance just doesn’t cut it. Relying on loopholes in the law is unacceptable.
Public officials are not only subject to the rule of law but to logic. Any logical person would have reasoned that Dlamini’s conduct was irresponsible, undermined her constitutional obligation and bordered on illegality.
An important element of accountability is provision for sanctions and the ability to enforce those. Enforcement strengthens responsiveness and respect for the rule of law.
Sanctions without this translates to weak accountability. Where public officials calculate they will be able to get away with “murder”, they will be emboldened to break the rules. Impunity is a threat to the rule of law and accountability. It creates demagogues and autocrats who feel they are bigger, better, stronger than anyone else.
The electorate does not have the powers between elections to institute recall proceedings against public representatives and cabinet ministers. Even at general elections, voters do not have a say in the individuals political parties put up as prospective representatives in the legislatures and candidates for ministerial posts.
The electorate therefore relies on political parties to enforce sanctions on those public officials who fail in their duties.
It is not enough for the courts to determine the legal liability of politicians who have failed in their obligations.
It is more important that there be political consequences for those who fail in their duties like Dlamini. Unfortunately, political expediency and lack of political will, particularly, in the ANC, has led to a situation where impunity has become entrenched. This has emboldened the likes of Dlamini and recently Malusi Gigaba – also found by a court to have perjured himself – to feel it within their right to lie to the courts.
But the graver offence is that they lied to the citizenry.
Should they escape political accountability in losing their jobs then the electorate has the option to mete out an even harsher sanction on the ANC at next year’s general election.