Democracy and Political Governance in South Africa: The African Peer Review Mechanism (Advances in African Economic, Social and Political Development) 3031163125, 9783031163128

Table of contents :
Foreword
Preface
Acknowledgments
About This Book
References
Contents
Contributors
Democracy and Political Governance in South Africa
1 Introduction
2 Democracy
3 Governance
4 Democratic Structures and Governance in South Africa
5 The Crisis of Governance in South Africa
6 Toward a Renewed Democratic Governance in South Africa
7 Conclusions
References
A Critique of South Africa´s Quest for Accountable, Efficient and Effective Public Service
1 Introduction
2 Key Legislative Instruments of the South African Public Service: An Overview
3 Conceptualizing the Notions of Accountability, Efficiency and Effectiveness
4 A Synopsis of South African APRM Issues (Related to the Objective of Accountable, Efficient and Effective Public Service)
5 Analysis and Emerging Insights
6 Regulatory Framework for Service Delivery
7 Service Delivery
8 Monitoring Government Performance
9 Corruption in the Public Service and State Capture
10 Capacity Building, Training and Professionalization of the Public Service
11 Accountability
12 Recommendations
13 Conclusion
References
Evaluating the Commitment of South Africa to the Principles of Separation of Powers
1 Introduction
2 Emerging Insights on Constitutional Democracy and Separation of Power
3 Conceptualization of the Principle of Separation of Power and Check and Balance
3.1 Separation of Power
3.2 Check and Balance
4 Separation of Powers and Checks and Balances in Action
4.1 Good Governance
4.2 Accountability
4.3 Legislative Oversights Responsibilities and Transparency
4.4 Veto Power and Players
4.5 Judicial Independence and Separation of Powers
5 Recommendations
6 Conclusion
References
A Rural Perspective on the African Peer Review Mechanism: Views on Socio-Economic Development and Public Service Delivery in R...
1 Introduction
2 Defining Rural Areas and Municipalities
3 Developments in [Rural] Public Service Delivery in South Africa
4 Public Service and the State of Service Delivery in South Africa
5 Governance in Rural Areas
6 A Network of Role Players Is Responsible for Services in Rural Areas
6.1 Civic Organisations
6.2 Traditional Leaders
7 Service Delivery Challenges in Rural Areas
7.1 Small-Scale, Inconsistent, and Ad Hoc Solutions
7.2 Inappropriate Technologies and Municipal Infrastructure Grant Limitations
7.3 Political Overreach
7.4 Weak Institutional Capacity
8 Vertical Imbalances in Resource Sharing
9 Conclusion
References
Democracy, Peace and Stability in South Africa: The Struggle Continues
1 Introduction
2 Conceptual Framework
2.1 Democracy, Peace and Stability
3 Identified Issues from the First-Generation APRM Report with Implications for Democracy, Peace and Stability: Emerging Insig...
3.1 Nation Building: Managing Diversity
3.2 Poverty, Inequality and Unemployment
3.3 The Land Question and Reform
3.4 Racism and Xenophobia
3.5 Crime and Corruption
4 Positioning South Africa in the APRM Framework: Reflecting on the National Programme of Action
5 Synthesis and the Future: Democracy, Peace and Stability
6 Recommendations
7 Conclusion
Bibliography
South Africa´s Political Commitment to the Promotion and Protection of the Rights of Vulnerable Groups
1 Introduction
2 Appraisal of the Previous Report: Emerging Insights (Policy, Principle and Practice)
3 Challenges to the Rights of Vulnerable Groups in South Africa
4 Best Practices and Opportunities
5 Recommendations for Policy Improvement
6 Conclusion
References
Evaluating the Rights of Children and Young People in Africa: The Policies and Practices in South Africa
1 Introduction
2 Policy Review of Children and Young People´s Rights in Africa
2.1 Children´s Rights and Institutional Reforms in Africa
3 Legislative Frameworks on Children and Young people´s Rights in South Africa
3.1 Children´s Rights in Apartheid South Africa
3.2 Post-Apartheid South Africa and Children´s Rights
3.2.1 Overview of Policies, Legislation, and Institutions Dealing with Children´s and Young People´s Rights in SA
3.2.2 Status and Policies of Children and Young People´s Rights in South Africa, 1996
3.2.3 Childcare and Protective Legislation
3.2.4 Social Protection and Legal Identity
3.2.5 Child Justice Statutes and Protection of Children from Exploitative Practices
3.2.6 Children and Youth Development
4 Emerging Legislation, Policies, and Practices in the Previous SA-APRM Report
5 Children and Young People´s Rights and Abolishing of Corporal Punishment
5.1 Undocumented Migrants/Refugees and Children´s Rights
5.2 Insights on Children´s and Young People´s Health, Drugs, Gangsterism
5.3 Social Intervention Policies and the Dilemma of Young People´s Development
6 Conclusion and Recommendations
6.1 Recommendations
References
Promotion and Protection of the Rights of Citizens in South Africa: A Review
1 Introduction
2 The Bill of Rights
3 Promotion and Protection of the Rights of Citizens: Response to Previous APRM Reports
4 Drivers of Human Rights Abuse in South Africa
4.1 Corruption as a Driver of Human Rights Abuse in South Africa
4.2 Inequality, Unemployment and Poverty
4.3 Violence against Women and Children
5 Service Delivery
6 Land Reforms
7 Racism
8 Access to Courts
9 Conclusion
References
The Voice of the Voiceless: The State of Civil and Political Rights in South Africa
1 Introduction
2 The State of Civil and Political Rights in South Africa: Emerging Insights
3 Freedom of Association
4 Role of Civil Society
5 Political Parties
6 Individual Rights
7 Conclusion
References
An Assessment of Government Commitment to the Promotion and Protection of Women´s Rights in South Africa
1 Introduction
2 Women´s Rights in International Human Rights Regime
3 The African Peer Review Mechanism Report on South Africa
4 APRM Report on South Africa: 2021 About the Promotion and Protection of the Rights of Women
5 Women´s Representation in Government and the Economy
6 Women´s Challenges with Poverty, Hunger and Lack of Dignified Living
7 Gender-Based Violence
7.1 Access to Justice for Victims and Survivors
7.2 Change Norms and Behaviour Through High-Level Prevention Efforts
7.3 Urgently Respond to Victims and Survivors of GBV
7.4 Strengthen Accountability and Structures
7.5 Economic Opportunities for Addressing Women´s Economic Vulnerability
8 Areas that Require Further Improvement
9 Conclusion
References
Deepening Leadership Accountability in South Africa
1 Introduction
2 Leadership Accountability
3 Accountability Mechanisms in South Africa
4 Cadre Deployment as Anathema to Leadership Accountability in South Africa
5 Deepening Leadership Accountability in South Africa
6 Conclusion
References
Correction to: Peace and Stability in South Africa: The Struggle Continues
Correction to: Chapter 5 in: I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in Afri...

Citation preview

Advances in African Economic, Social and Political Development

Isioma Ile Omololu Fagbadebo   Editors

Democracy and Political Governance in South Africa The African Peer Review Mechanism

Advances in African Economic, Social and Political Development Series Editors Diery Seck, CREPOL - Center for Research on Political Economy, Dakar, Senegal Juliet U. Elu, Morehouse College, Atlanta, GA, USA Yaw Nyarko, New York University, New York, NY, USA

Africa is emerging as a rapidly growing region, still facing major challenges, but with a potential for significant progress – a transformation that necessitates vigorous efforts in research and policy thinking. This book series focuses on three intricately related key aspects of modern-day Africa: economic, social and political development. Making use of recent theoretical and empirical advances, the series aims to provide fresh answers to Africa’s development challenges. All the socio-political dimensions of today’s Africa are incorporated as they unfold and new policy options are presented. The series aims to provide a broad and interactive forum of science at work for policymaking and to bring together African and international researchers and experts. The series welcomes monographs and contributed volumes for an academic and professional audience, as well as tightly edited conference proceedings. Relevant topics include, but are not limited to, economic policy and trade, regional integration, labor market policies, demographic development, social issues, political economy and political systems, and environmental and energy issues. All titles in the series are peer-reviewed. The book series is indexed in SCOPUS.

***

Isioma Ile • Omololu Fagbadebo Editors

Democracy and Political Governance in South Africa The African Peer Review Mechanism

Editors Isioma Ile University of the Western Cape Bellville, South Africa

Omololu Fagbadebo Durban University of Technology Scottsville, Pietermaritzburg KwaZulu-Natal, South Africa

ISSN 2198-7262 ISSN 2198-7270 (electronic) Advances in African Economic, Social and Political Development ISBN 978-3-031-16312-8 ISBN 978-3-031-16313-5 (eBook) https://doi.org/10.1007/978-3-031-16313-5 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023, corrected publication 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

This book is dedicated to colleagues and stakeholders in the quest for a more inclusive and accountable South Africa.

Foreword

South Africa is one of the founding Member States of the African Peer Review Mechanism (APRM) and was among the first countries to be peer-reviewed. Since the First Self-Assessment Country Report, which was produced in 2006, South Africa has produced three (3) progress reports based on the recommendations of the first (1st) Country Peer Review Report on South Africa of 2007. The last progress report was tabled in 2014. The successful conclusion of South Africa’s second Generation Country Review at the APR Forum of Heads of State and Government on the fourth of February 2022, propels the national APRM process to focus on the National Plan of Action, arising from the Country Review Mission (CRM) recommendations as articulated in the second Generation Country Review Report. The publication of this book on the APRM thus comes at an opportune time, as South Africa seeks to implement its National Plan of Action, and as we celebrate the APRM 20th anniversary in 2023. It also enriches the discourse on governance, particularly because some of the authors provided valuable input into the APRM process, in preparation for South Africa’s second Generation Country Review. Head of the APRM National Secretariat, Midrand, Republic of South Africa

Patrick M. Sokhela

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Preface

This book project aimed at presenting progress on African Peer Review Mechanism (APRM) with a focus on the South African democratic space. The African Peer Review Mechanism (APRM) is a voluntary mechanism adopted by countries in the African continent to improve governance in general. This book seeks to consider the development of the South African governing system and its response to the challenges of the crisis of governance. It is intended to be the first in a series of studies on public governance in African countries. The APRM is a self-assessment strategy initiated by the African Union (AU) in 2002 and adopted in 2003. It was part of the implementation framework of the New Partnership for Africa’s Development (NEPAD). The AU has a specialized agency, APRM, to monitor the peer review activities of each African country. According to the AU, APRM is a tool for sharing experiences, reinforcing best practices, identifying deficiencies, and assessing capacity-building needs to foster policies, standards and practices that lead to political stability, high economic growth, sustainable development and accelerated sub-regional and continental economic integration (AU. 2018).

Specifically, the purpose of the APRM is to keep an eye on the progress in African governance through the monitoring and evaluation process. Thus, African countries that subscribed to the APRM “undertake self-monitoring in all aspects of their governance and socio-economic development”, which include “the self-assessment of all branches of government—executive, legislative and judicial—as well as the private sector, civil society and the media” (AU 2018). This self-assessment incorporates four major thematic areas. These are Democracy and Political Governance (DPG), Economic Governance and Management (EGM), Corporate Governance (CG), and Broad-based Sustainable Socio-economic Development (SED). Essentially, this APRM is a response to the need for the promotion of good governance in African countries to ensure effective public service delivery and stimulate sustainable growth and development. This is a demonstration of the commitment of the

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leadership of the AU to promote good governance, which has remained a rarity in the continent for years. Africa remains dependent on advanced economies. This is not a function of insufficient resources, humans, and materials, but mismanagement of the endowed wealth (Fagbadebo 2019). The consequence of this is a series of the crisis of governance that pervades the continent. Young Africans have taken pride in migrating to the West to escape the harsh reality of the socio-political and economic environments generated by the failure of government in their respective countries. A writer, Branko Milanović, puts it this way: Africa is not at the forefront of the new economic and social issues which arise in the advanced economies. Nor does it have the funds to maintain numerous intellectuals who create “theories” and an “intellectual climate”. Objectively, both problems are caused by poverty (Milanovic 2021).

The poverty factor is a creation of leadership failure. With the enormous natural resources in each of the African states, poverty should not be a factor if the leaders have been able to harness the natural potential for sustainable transformation of society. While African intellectuals in the West are active in the invention of modern technology driving the digital economy, the continent lack in benefiting maximally from the overall benefits thereof. Hence, the lack of resources, mostly political will, “to maintain the intellectual class which could promote African domestic issues and they thus become mere consumers of the ideas produced in the rich countries” (Milanovic 2021). In the annual indexes on development and growth by various International Non-governmental Organizations (INGOs), African countries are usually found at the lower level of ranking. For instance, in the 2021 Fragile States Index (FSI), 22 African states are on the alert level, 17 in high warning, 8 and 5 in an elevated warning and warning level, respectively, of implosion (The Fund for Peace 2021). Except for Mauritius (very stable) and Seychelles (more stable), no other African countries qualify to be regarded as sustainable stable ranking. This is an indication of a worsening crisis of governance. The FSI measures the various indicators of weak governance structures. Indeed, the 2020 Ibrahim Index of African Governance (IIAG) noted a decline in the continent’s governance performance (MO Ibrahim 2020). The report noted “an increasingly precarious security situation” and “erosion in rights as well as civic and democratic space” as major areas of decline (MO Ibrahim 2020). Accordingly, public participation, rights and inclusion, security, and the Rule of Law have also registered worrying declines (MO Ibrahim 2020). The AU leadership is aware of these deficiencies. In its 2019 governance report, the organization noted that the continent’s performance around democracy and political governance was weak (AU 2019). The AU’s African Governance Report measured the level of development in five thematic areas: transformative leadership, constitutionalism and the rule of law, peace, security and governance (Silencing the Guns), the nexus between development and governance, and the role of regional economic communities (RECS). Nevertheless, its assessment of satisfactory

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performance in socio-economic development and management is not accurate. In the 2020 Corruption Perception Index (CPI), a majority of African countries were perceived to be highly corrupt (Transparency International 2021). Corruption has remained the major indicator that stifles African governance. The democratic and political governance theme of the APRM is designed to ensure that the constitutions of the African states reflect democratic ethos with adequate provisions that support accountability and good governance (APRM 2021). This includes the promotion of political representation, citizens’ participation, and a free and fair electoral process. This thematic area abhors forceful change of government, but “aims at establishing and strengthening appropriate electoral administrations and oversight bodies in our respective countries and providing the necessary resources and capacity to conduct elections that are free, fair and credible” (APRM 2021). The thematic area also has 9 major objectives. 1. To prevent and reduce intra- and inter-country conflicts. 2. democracy, including periodic political competition and opportunity for choice, the rule of law, a Bill of Rights, and the supremacy of the constitution are firmly established in the constitution. 3. Promote and protect economic, social, cultural, civil, and political rights as enshrined in all African and international human rights instruments. 4. Uphold the separation of powers, including the protection of the independence of the judiciary and of an effective Parliament. 5. Ensure accountable, efficient, and effective public office holders and civil servants. 6. Fight corruption in the political sphere. 7. Promote and protect the rights of women. 8. Promote and protect the rights of the child and young persons. 9. Promote and protect the rights of vulnerable groups, including displaced persons and refugees. In its third report on the implementation of APRM programmes in South Africa, it was noted that the government at the national and provincial levels has “continued to strengthen and implement systems to promote civil society participation in government programmes” (APRM 2014). According to the report, Opportunities have been created through platforms such as the development of the Green/ White papers, petitions, outreach programmes, State of the Nation Address (SONA) and budget vote where representatives from civil society organisations are invited to participate (APRM 2014, p. 31).

Nevertheless, this thematic area is confronted by a myriad of challenges such as poor turnout of citizens at public fora, weak publicity, political apathy, inadequate communication, and publicity of government activities which created poor awareness, and a lack of access of citizens to governmental institutions.

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The authors’ contributions are anchored on the central objective of examining the progress of the South African government in strengthening democracy and political governance. Each of the chapters addresses the following thematic issues: 1. Assessment of the implementation of the core APRM-related programmes. 2. Identification of areas of excellence and prognosis for further improvement. 3. Identification of the weak areas of each and how to make the future implementation better. 4. Identification areas to improve democracy and political governance. Bellville, South Africa Scottsville, Pietermaritzburg, South Africa

Isioma Ile Omololu Fagbadebo

Acknowledgments

This book is borne out of our desire to bring into the limelight the need for inclusive political governance in South Africa. We could not have done this alone without the support of colleagues who spared their time to brainstorm on the major issues that arose from the African Peer Review Mechanism (APRM) structure in South Africa. We acknowledged the national secretariat of the APRM in South Africa. We thank colleagues who contributed chapters to this volume. We acknowledge and appreciate our colleagues who volunteered to participate in the blind review of the manuscripts. Your criticism and insights assisted in strengthening the quality of this book. You gave us additional perspectives that enabled editors to make informed decisions. Authors of the chapter also benefited immensely from your wealth of expertise. We ae indebted to the Springer Nature editorial team in particular, the Advances in African Economic, Social and Political Development series. We recognize and acknowledge the role of Niko Chtouris in facilitating this process. We are grateful.

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About This Book

The book has eleven chapters. In chapter 1, Democracy and Political Governance in South Africa, Omololu Fagbadebo and Isioma Ile provide a review of the practice of democracy in South Africa within the context of its governing system. They examine the role of the three branches of the government of South Africa as well as the general perception of the public concerning the ideals of democracy in the country. They also examine the various governance structure and their linkage to the country’s general principle of public administration that extols adherence to democratic values as the cornerstone of public service delivery. They noted the gap between the theory and practice of democracy in South Africa and conclude that without a change of orientation towards leadership, South Africa would continue to experience a democratic recession in terms of public participation and public service delivery. In Chapter 2, “A critique of South Africa’s progress towards accountable and efficient public office holders”, Isioma Ile provides a critique of leadership accountability in South Africa. One of the cardinal issues in the APRM framework is the imperative of leadership accountability. The author reviewed previous reports on leadership accountability and efficient service delivery in the public sector. Despite government avowed commitment towards improved accountability, the South African state continues to be drenched in the state capture crisis. This chapter is shaped by one of the critical and identified APRM political governance objectives. Specifically, the chapter critiqued the extent to which the South African state has and is ensuring that its public office holders and civil servants are both accountable and efficient in the delivery of services. Effective leadership accountability depends largely on the structural principles in the governing system. In Chapter 3, “South Africa’s commitment to the principle of separation of powers”, Evans Boadu appraises South Africa’s adherence to the principle of separation of powers. The Constitution of South Africa sets out rules guiding the separation of powers among the three major branches of the government: legislature, executive, and judiciary. Having defeated the apartheid government, a new constitution was negotiated with the principles associated with constitutional democracy. Each of the branches of the government has its constitutional role, in a xv

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separated but shared power relationship. The country has made strides in defending the letter and spirit of the constitution by upholding the bill of rights, rule of law, and supremacy of the constitution with a functioning government, independent judiciary, and effective parliament. In particular, the chapter examined the activism of the judiciary in its judicial review of legislative and executive decisions, most especially on the issues of public accountability. In chapter 4, “A rural perspective on the African Peer Review Mechanism: views on socio-economic development and public service delivery in rural South Africa”, Betty C. Mubangizi noted the merits and significance of APRM in the governance debate as a pivotal point in the evolution of institutional and state governance, providing enormous prospects for public accountability, socio-economic progress, and development of African countries. Following South Africa’s admission to the African Peer Review Mechanism in 2003, the realm of local government is important to the achievement of the country’s Programme of Action. The White Paper on Local Government (WPLG), which serves as the Chapter’s starting point, provides a policy framework for local government in South Africa which is congruent with the APRM’s theme areas of democracy, political governance, and socio-economic development. Local government in South Africa, however, is not a homogeneous institution, and there are differences in their capacity to provide for their citizens. The WPLG provides a policy framework for both rural and urban towns, but the two environments are significantly different, providing substantial issues for rural communities. Previous APRM self-assessment reports were silent on the subject, preferring to focus on national victories rather than disaggregating rural–urban achievements and concerns. In Chapter 5, “South Africa’s Democracy, Peace and Stability: The Struggle Continues”, Enos Lekala presents an analysis of the transition of South Africa from decades of protracted conflicts to a relatively peaceful democratic state in 1994. With the dawn of democracy came equal and popular participation in the public affairs of the country, outlawing of racism and related discriminatory practices, the adoption of the constitutionalism principle, and the resultant institutionalization of constitutional democracy. Further, the democratic dispensation saw the apartheid-era military incursions into the neighbouring countries ceasing, and the country coordinating concerted efforts to build and deepen peace and stability at home. It has since begun to play a vital regional, continental, and global role in promoting peace, stability, and prosperity. However, while South Africa’s efforts to build peace and security both within its borders and elsewhere are commendable, there remain some areas of concern that pose an imminent threat to peace and stability for the country. Helpfully, South Africa constructed a solid array of democratic institutions and mechanisms with which to tackle various socio-economic issues, including conflict. Adeyemi Badewa and Mulugeta Dinbabo present “South Africa’s political commitment to the promotion and protection of the rights of vulnerable groups” in Chapter 6. They argue that a guarantee for the promotion and protection of the rights of vulnerable groups is imperative for good governance and socio-economic development. This principle is underscored by the African Peer Review Mechanism (APRM) as critical to strengthening democracy and political governance in Africa.

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This chapter undertakes a review of the progress made by the Republic of South Africa in the last four years on this phenomenon. Despite constitutional guarantees, the rights of these groups have not been adequately protected, amidst persistent and structural violations, abuses, and inefficiency in essential public services delivery. Some identified practices in South Africa, such as affirmative actions and measures targeted at eliminating or reducing conditions that perpetuate discrimination and combatting prejudice against the vulnerable and marginalized groups, at both national and sub-national levels, have produced mixed results. Therefore, the need for cooperative governance starting with the review of the national intervention programmes, an overhaul of the public participation mechanisms and processes to enhance efficiencies in the services delivery, inclusiveness, and support for the vulnerable groups should be premised on sustainable development priorities. In Chapter 7, “Evaluating the rights of children and young persons in South Africa: The legal, policy and institutional protections”, Evans Boadu and Friday Alaji present an evaluation of the plights of youth and children in the face of a series of abuse and violation of their rights in South Africa. Children and youth of any country are integral and form part of the vital developmental structure of that country. Nonetheless, there is a lingering uncertainty surrounding the legislation, policies, and institutional protections of children and young people against several violations in both developed and developing countries. The exploitation and commodification of children and young person’s bodies are on the rise in South Africa. This is contradictory to Section 28 of the Bill of Rights in the Constitution of South Africa of 1996 which stipulates the right of a South African child. In the light of the above, the chapter unpack the historical antecedents of the right of children and young people as well as the child rights policies (pre and postapartheid). The chapter conclude by providing a holistic approach the challenges confronting children and young people and provides pragmatic recommendations for the protection of children and young people in South Africa. In Chapter 8, Omololu Fagbadebo and Olumuyiwa Faluyi present a review of the promotion and protection of the Rights of Citizens in South Africa within the context of the constitutional provisions and the Bill of Rights. They note that South Africa has comprehensive legislative frameworks that promote the rights of citizens with a liberal justice system that prioritizes the welfare of citizens. While citizens are aware of these rights, they are also informed about the consequences of flagrant abuse of liberal constitutionalism. Nevertheless, while the legislative frameworks affirm the protection of the rights of citizens, the lenient justice system has remained an instrument of abuse in the face of escalating criminal activities and violent crimes that have constituted a threat to the safety and security of South African society. While the government continues to reinforce the institutional and structural supports for the protection of the rights of citizens, the respect for the requisite statutes on the rights of citizens has been confronted with unprecedented events and developments that call for a review of the country’s justice system. Zwelinzima Ndevu, in Chapter 9, “The voice of the voiceless: the state of Civil and Political Rights in South Africa”, notes that while the democratic breakthrough of 1994 and the adoption of the constitution in 1996 guaranteed civil and political

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rights, South Africa is still confronted by structural issues that inhibit full exercise and enjoyment of these civil and political rights. Cases of corruption such as state capture, poverty, high unemployment, and violent crime significantly restricted South Africans’ enjoyment of their rights. The need for protection and promotion of civil and political liberties will ensure that the integrity and rights of people are respected by the state which has a responsibility to take necessary steps to protect citizens’ rights from violation. The institutionalization of a system of the due process involving competent judges who can apply the law independent of outside pressures and with impartiality is critical. The country report of the African Peer Review Mechanism in 2007 while acknowledging the progress that has been made in the promotion and protection of civil and political rights also identified the persistent legacy, and therefore resultant disparities, distortions, and social relations of the apartheid era remain visibly pervasive. The chapter will focus on the themes such as freedom of association, the role of civil society, ways to strengthen political parties, and individual rights. Meron Okbandrias presents “An assessment of Government Commitment to the Promotion and Protection of women’s rights in South Africa” in Chapter 10, with an analysis of the scourge of gender-based violence which had claimed the lives of many in South Africa. The levels of vulnerability to violence for all women have been gradually coming into a particularly sharp focus over the past few years, as all living in South Africa were inundated daily by media and police reports of the horrific and senseless murder, rape, and maiming of women and children in homes and communities. In addition, women, mainly black, poor, and rural women, bear the brunt of poverty, unemployment, and inequality while carrying the responsibility of taking care of children’s emotional, physical, and financial needs. The focus of the chapter is Gender-Based Violence and Femicide (GBVF) as a major issue in South African Society. Despite the decrease in the general trend in GBVF as a trend, it is still high by global standards. There was a greater focus on violence perpetrated on women and children in the last 5 years. The previous administration has tried to address the problem to a certain extent and the Ramaphosa government set up Emergency Response Action Plan (ERAP) on GBVF. It is the most concerted effort so far by the South African government. The chapter will look primarily at the extent of GBVF in the last 10 years and discuss its root problem. GBVF is also an indication of a deeper systematic issue of poverty and patriarchy. The chapter will unpack some of the cultural and systemic issues that give rise to GBVF and address these issues to provide a long-term solution to the problem. Furthermore, it is critical to examine the efforts by the successive government to address the problems in all efforts in terms of access to justice for survivors, changes norms and behaviours, respond to victims and survivors, increased capacity and architecture to respond to GBVF, and economic opportunities to address women’s economic vulnerability. The chapter will provide recommendations. In conclusion, Omololu Fagbadebo and Isioma Ile, in Chapter 11, “Deepening Leadership Accountability in South Africa” examine the primacy of leadership accountability for the promotion of sustainable democratic culture in South Africa. They argue that the central challenge to the promotion of democratic governance in South Africa is leadership. Using data from the various reports of leadership

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malfeasances, the authors note that the system of cadre deployment by the governing party is a disservice to leadership accountability and the promotion of good governance in South Africa. While the deployed members of the party in the various levels of the government are expected to serve the interest of the state, their loyalty is entrenched in the interest of their deployers. Thus, the rampant cases of corruption, poor public service delivery, and the deepening crisis of governance are reminiscences of a governing system characterized by a cult of personalized politics. Rising unemployment, amid bourgeoning corruption and mismanagement of public resources, has remained the dilemma of a government that vowed to be the vanguard of the oppressed citizens. The authors submit that leadership accountability is a sine qua non for a true transformation agenda of a rainbow country under the torrential rainfall of violence and deepening inequality.

References APRM. (2014). Third Report on the implementation of South Africa’s APRM Programme of action: Broadening Public Participation. APRM. 2021. Democratic and political governance. Available at https://www.aprmau.org/ AU. (2008). African Peer Review Mechanism (APRM). Available at https://au.int/ en/organs/aprm AU. (2019). The Africa Governance Report: Promoting African Union Shared Values. Available at https://au.int/en/documents/20191218/africa-governancereport-promoting-african-union-shared-values Fagbadebo, O. (2019). Corruption, and the Challenge of Accountability in the PostColonial African States: A Discourse. Journal of African Union Studies 8(1), pp.9–32. DOI: https://doi.org/10.31920/2050-4306/2019/v8n1a1 Milanović, B. (2021). The Marginalisation of Africa. IPS Journal, May 27. Available at https://www.ips-journal.eu/topics/economy-and-ecology/themarginalisation-of-africa-5202 MO Ibrahim Foundation. (2020). Ibrahim Index of African Governance (IIAG). Available https://mo.ibrahim.foundation/iiag/2020-key-findings#kf1 The Fund for Peace. (2021). Fragile States Index 2021 – Annual Report. Available at https://fragilestatesindex.org/2021/05/20/fragile-states-index-2021-annualreport/ Transparency International. (2021). Corruption Perceptions Index 2020. Available at https://www.transparency.org/en/cpi/2020/index/nzl

Contents

Democracy and Political Governance in South Africa . . . . . . . . . . . . . . Omololu Fagbadebo and Isioma Ile

1

A Critique of South Africa’s Quest for Accountable, Efficient and Effective Public Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Isioma U. Ile

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Evaluating the Commitment of South Africa to the Principles of Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evans Sakyi Boadu

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A Rural Perspective on the African Peer Review Mechanism: Views on Socio-Economic Development and Public Service Delivery in Rural South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Betty C. Mubangizi

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Democracy, Peace and Stability in South Africa: The Struggle Continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enos Lekala

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South Africa’s Political Commitment to the Promotion and Protection of the Rights of Vulnerable Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adeyemi S. Badewa and Mulugeta F. Dinbabo

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Evaluating the Rights of Children and Young People in Africa: The Policies and Practices in South Africa . . . . . . . . . . . . . . . . . . . . . . . Evans S. Boadu and Friday Alaji

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Promotion and Protection of the Rights of Citizens in South Africa: A Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omololu Fagbadebo and Olumuyiwa T. Faluyi

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The Voice of the Voiceless: The State of Civil and Political Rights in South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Zwelinzima Ndevu

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An Assessment of Government Commitment to the Promotion and Protection of Women’s Rights in South Africa . . . . . . . . . . . . . . . . Meron A. Okbandrias Deepening Leadership Accountability in South Africa . . . . . . . . . . . . . . Omololu Fagbadebo and Isioma Ile Correction to: Democracy, Peace and Stability in South Africa: The Struggle Continues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enos Lekala

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Contributors

Adeyemi Saheed Badewa is an interdisciplinary researcher in international studies and global development. He is affiliated with the Institute for Social Development, University of the Western Cape, Cape Town, South Africa, where he also obtained his doctoral degree in Development Studies (2020). He holds a master’s degree in History and Strategic Studies from the University of Lagos, Nigeria (2014), and an LLM in Transnational Criminal Justice, University of the Western Cape, South Africa (2022). His areas of specialization include peace and conflict, regional development, migration, transnational governance, and transformative justice. He has taught courses in history, international relations, development, comparative politics, and research methodology at both Olabisi Onabanjo University, Nigeria, and the University of the Western Cape. He was a recipient of the Queen Elizabeth Scholarship, 2019/2020, at the Balsillie School of International Affairs, Canada. He is an associate editor of Irinkerindo: A Journal of African Migration (IJAM). Evans Sakyi Boadu studied in Accra at the University of Ghana (UG), Department of Political Science where he successfully completed his first degree, BA in Political Science. He obtained his master’s and Ph.D. degrees in Public Administration at the University of the Western Cape (UWC), Cape Town, South Africa. He is currently an Associate Lecturer and a Postdoctoral Research Fellow at the School of Government (SoG) and School of Public Health (SoPH), UWC, respectively. He is a passionate and intellectually curious young African scholar with an interest in social policy research, monitoring and evaluation (M&E), indigenous knowledge systems (IKS), culturally responsive evaluation (CRE), governance and political history of Africa, community-based development (CBD) and governance for health and wellbeing and their overarching consequences on socio-economic issues in Ghana, South Africa, and Africa at large. He has published in several international peerreviewed journals. He has also worked with credible social and economic research institutions in Ghana and South Africa.

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Mulugeta F. Dinbabo is a Professor of Development Studies at the University of the Western Cape, South Africa. He obtained his Ph.D. degree in Development Studies from the University of the Western Cape. He is an established researcher whose research trajectories have been influenced by the critical role of Development Studies and Postgraduate Teaching. He has built a stronger research ethic and published extensively in local and international journals. He is also the founder and Chief Editor of the African Human Mobility Review (AHMR), which is an accredited journal by the Department of Higher Education and Training (DHET). AHMR is an interdisciplinary peer-reviewed on-line journal created to encourage and facilitate the study of all aspects (socio-economic, political, legislative, and developmental) of Human Mobility in Africa. Omololu Fagbadebo holds a doctoral degree in Political Science from the University of KwaZulu-Natal, South Africa. He is a Research Associate and a contract lecturer in the Department of Public Management, Law and Economics at the Durban University of Technology. He taught Political Science at the Obafemi Awolowo University, Ile-Ife, Nigeria and the University of KwaZulu-Natal, South Africa. He was a recipient of the Study of the United States Institute (SUSI) on American Politics and Political Thought Fellowship at the University of Massachusetts, Amherst, in June/July 2010. He has published academic papers in journals and books. He has presented papers at conferences and workshops. He is a member of editorial board and an associate editor of reputable journals. His area of specialization includes comparative politics, legislative studies, public governance, public institution, leadership, development studies, and African government politics. He is the Coordinator of the African Impact Initiatives for Scholars and the initiator of the Centre for African Governance and Development (CAGD), Durban University of Technology. He is a member of the Editorial Board of SN Social Sciences. Olumuyiwa T. Faluyi holds Ph.D. in Political Science from the University of KwaZulu-Natal, South Africa. He works with the Institute for Pan-African Thought and Conversation, University of Johannesburg, Johannesburg, South Africa. His research interest is in comparative politics, identity politics, violence, non-state actors, and public policy. He has published in reputable publication platforms. Alaji Friday is a development researcher whose work focuses on participatory development (people-centred development) in sub-Saharan Africa. His main research interest is the design and assessment of participatory projects that promote the inclusiveness of the “ordinary people”. Presently, he is completing a doctoral (Ph.D.) degree at the University of the Western Cape, South Africa. He holds an M.A. Political Science (Rural Development) degree from the prestigious University of Hyderabad, India. Then, returned to Nigeria and worked with the International Institute of Tropical Agriculture (IITA) as a Project Research and Administrative Coordinator for three different projects (January 2015–May 2018) in Nigeria and Ghana: Yam Improvement for Income and Food Security in West Africa

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(YIIFSWA), Community Action for improving Farmer-Saved Seed Yam (CAY-Seed), and the West African Agricultural Productivity Programme (WAPP). Isioma Ile is a Professor at the School of Government, University of the Western Cape, South Africa. She has about 20 years of experience in academia and works with large cohorts of postgraduate scholars. She has presented several papers in various local and international conferences. She has published 5 books, one of which was the first dedicated book on Monitoring & Evaluation in South Africa, as well as numerous papers in accredited journals. She is a rated researcher and scientist by the South African National Research Foundation (NRF), and a member of various research teams. As a teacher, some of her international experience includes work with the University of Bochum in Germany, and the Harry Truman School of Public Affairs, University of Missouri, USA. She remains passionate about her academic interests in governance reforms in Africa. She is a member of various professional bodies in Public Administration and Management, nationally and internationally. Enos Lekala is an innovative and pro-active development and public policy practitioner, facilitator, and social entrepreneur with proven ability to thrive under dynamic organizations. He is also an all-round administrator possessing an analytical mind that enables him to discern and navigate different dynamics to draw insights and drive solutions as an individual and team member (collaborative solutions-seeker). In his emerging self, he is a burgeoning strategist, fundraiser, and proposal writer with adaptive ability to take on different roles in research and teaching. Based at Stellenbosch University, with associated presence in three distinct departments, he conducts research in various fields for teaching purposes and commissioned work. Among others, he has contributed on projects by Water Research Commission, African Peer Review Mechanism, Water Institute, ASSADPAM, and School of Public Leadership. Betty Claire Mubangizi is an NRF-rated researcher who holds a Doctor of Public Administration and is a Full Professor of Public Administration and Governance at the University of KwaZulu-Natal. Currently, she holds the NRF/Research Chair in Sustainable Rural Livelihoods in the School of Management, IT and Governance at the University of KwaZulu-Natal, where she previously served as Dean and Head of School. Prof Mubangizi has a passion for excellence in teaching underscored by reflective practice, as well as an understanding of the needs of students from various backgrounds. She has published widely on sustainable livelihoods and public governance issues. She has successfully supervised many doctoral and master’s students and serves as an external examiner for several universities. Professor Mubangizi is the Managing Editor of the African Journal of Governance and Development and the Guest Editor of the Loyola Journal of Social Sciences. Zwelinzima Ndevu is a professor and the Director at the School of Public Leadership (SPL) at Stellenbosch University. He is an Academic Head: Honours in Public Development and Management in SPL responsible for lecturing undergraduate and

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postgraduate students and a professional associate at the Anti-Corruption Centre for Education and Research of Stellenbosch University (ACCERUS), South Africa. An expert in the field of Public leadership, Human Resource Management with specialization on Performance Management, Ethics, Public Participation, and Local Government. He has published peer-reviewed chapters in books, accredited journal articles, and peer-reviewed national and international conference proceedings. He is a supporter of interdisciplinary research which leads to numerous capacitybuilding projects in South Africa; training short courses; professional consultation and study supervision of Master’s and Doctoral students projects; appointed as an external examiner for the Nelson Mandela University; Cape Peninsula University of Technology; University of Fort-Hare; University of the Western Cape; University of Limpopo, Tshwane University of Technology, and Management College of South Africa. Meron Okbandrias received a Ph.D. in public policy and a master’s in Public Administration and Management from the University of KwaZulu-Natal (UKZN). As a Senior Lecturer, he is currently teaching public policy and local government development at the University of the Western Cape (UWC). A strong advocate for inclusive governance and ethical leadership, his previous research focuses on Migration and Cooperatives, and current projects include research on smart cities, local economic development, and cooperatives. He employs both qualitative and quantitative methodologies in his research. In addition, he serves as a postgraduate coordinator for the School of Government and is a member of the South African Association for Public Administration and Management (SAAPAM). Dr. Okbandrias was also a coordinator for one of the DAAD centres in Southern Africa located in SOG.

Democracy and Political Governance in South Africa Omololu Fagbadebo

and Isioma Ile

1 Introduction One of the popular frameworks for the analysis of politics is David Easton’s input– output model of systems theory. This model presupposes that governing a state is a two-way interaction between the government and citizens in a systemic cycle of participation for effective public service delivery (Easton, 1965; Strebel et al., 2019). Easton’s conception of citizens’ participation in the policy process stems from the basis that the essence of the state is to promote the welfare of the people who are the main unit that defines society. Thus, their involvement in the “coordinated action aimed at resolving public problems” is crucial because the output should be the aftermath of a coherent activity “with normative principles shared by the citizens” (Strebel et al., 2019, 488). Incidentally, the priority given to the people is the nerve of democracy. The input–output model combines the two major expectations of citizens: participation in the decision-making process that produces substantive public goods. On the one hand, people’s participation, directly or indirectly, in government provides the opportunity for substantive inputs, real or imagined, into the elements that are fed into the agenda expected to be converted into substantive goods (Esaiasson et al., 2012). This version of participation subsists in advanced democracies, where citizens’ votes, substantially, exert influence on the outcomes of electoral processes and

O. Fagbadebo (*) Department of Public Management, Law and Economics, Durban University of Technology, Pietermaritzburg, South Africa e-mail: [email protected] I. Ile School of Government, University of the Western Cape, Bellville, Cape Town, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_1

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legislative activities. When people’s votes count, the elected representatives, delegated with the collective will of the people, are committed to the welfare of their constituents. This will guarantee public trust in government with effective public service delivery. In this wise, citizens’ sense of community would bolster public support to defend the government that is servicing the interests of the public. This democratic norm and practice are a rarity in Africa. On the other hand, the output version presupposes that the concern of citizens is more about the decisions rather than the process (Arnesen, 2017; Strebel et al., 2019). In what Hibbing and Theiss-Morse (2002) called “stealth democracy,” citizens are more concerned about the substantive quality of decisions of the government that seek to promote the public interests and satisfaction, depicting how government should function. While the actual level of public satisfaction is not precise, every decision outcome of the government has a direct impact on the yearnings of different sections of society. In this chapter, we look at the issues around democratic governance in postapartheid South Africa. We discovered that the euphoria of public support that greeted the freedom from the oppressive apartheid government began to wane as public expectations fall because of the mismanagement that characterized the government. Poverty, unemployment, heightened security challenges, and criminal activities amid corruption among top political actors have become the feature of the state. Thus, from the input version, South Africans are becoming more reclusive as public trust in government ebbs away.

2 Democracy Democratic tenets rest on freedom and equality of the people’s participation and in the governing of society. The various transformations (Dahl, 1989) in the practice of democracy since its initial practice in the Greek city-state of Athens, as the rule of the people, have retained these core elements that prioritize the people as the nucleus of democratic society (Dingeldey, 2019). From the “equal right of participation by free citizens in person, and the identity of rulers and subjects,” associated with direct democracy, to the indirect participation through elected representatives, and Huntington’s (1991, 1993) waves of democracy, the democratic practice has evolved as a global force dictating the governing of society (Dingeldey, 2019, p. 182). As the global system evolves, perspectives on people’s participation and expectations change. As Dahl (1989) noted, the transformation, coupled with the expansion in the units of political systems, portends a historical trajectory of decreasing the level of people’s participation in the political process. In other words, as a society embrace the tenets of democracy as governing principles through time, different opinions on how to make the practice more inclusive and effective gave rise to modifications in the forms of people’s involvement in the decision-making process. Nevertheless, the focus remains on the people, both in process and outcomes. As Russo, Avelino, and

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Table 1 Data on voting participation in national elections in South Africa, 1999–2019 Election year 1999 2004 2009 2014 2019

Registered voter 18,172,751 20,674,923 23,181,997 25,388,082 26,756,649

Total votes cast 16,228,462 15,863,558 17,919,966 18,654,771 17,672,851

Voter turnout % 89.3 76.73 77.3 73.48 66.05

Number of political parties 16 21 26 29 48

Source: Generated by authors from the database of the Independent Electoral Commission (IEC)

Guarni (2022) have noted, the most important democratic institutions and norms, political rights, free elections, and separation of the powers of the state put limitations on people’s participation in government. This means that even with limited government, the people, whether through direct or indirect participation, remain central to democratic practice. Indeed, the democratic process has meaning when its outcomes cater to the needs of citizens. Thus, democracy is all about governance. In a representative democracy, the most crucial level of people’s direct participation is in the electoral process. While this remains the opportunity for citizens to hold officeholders accountable, it is the process that symbolizes the voice of the people. The extent of citizens’ participation in the electoral process is determined by the level of public trust in government (Lee & Schachter, 2019). According to them, “a trustworthy political system makes citizens more likely to participate in government processes,” while political apathy “is a consequence of lack of trust” (Lee & Schachter, 2019, p. 405). When the government is responsive to the needs of citizens, they would be stimulated to be involved in the various processes to ensure the continuity and stability of the administration. Even though adherents of stealth democracy do not perceive democracy in this form, nevertheless, they are of the view that satisfactions derived from the policies of the government is a driver for public support. The motives of citizens’ participation differ, depending on the cost–benefits analysis. If the cost of participation is less than the derivable benefits, it is rational for citizens with high socioeconomic status to be involved in the political process because of the influence they could exert on the system to access resources and opportunities in government (Lee & Schachter, 2019). This set of people is few, hence the definition of representative democracy as a government by the elites (Barker, 2013; Elsasser et al., 2018; Longley, 2021; Campati, 2022). For most citizens, however, distrust in government occurs when there is a consistent failure in the provision of basic public services. The consequence of this is poor service protests and dwindling participation in the electoral process and other supportive activities. This is a common feature in African states. Table 1 presents the data on the citizens’ participation in five national elections in South Africa. From the table, except for the 2019 election, with 77.73% voters’ turnout, citizens’ participation in the electoral process has been going down. In 1999,

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89.3% of registered voters took part in the elections, but this figure has reduced to 66.05% in 2019. While the number of political parties increases from 16 in 1999 to 48 in 2019, there is no appreciable increase in the percentage of citizens’ participation (Sarakinsky & Fakir, 2015; Isike & Onapajo, 2017). The proliferation of political parties is a function of discontentment within the major political parties which led to the formation of new political parties. In 1997, Bantu Holomisa, a member of the executive of the ANC, rallied other colleagues to form the United Democratic Movement (UDM). In 2008, Mosiuoa Gerard Patrick Lekota left the ANC to form the Congress of the People (COPE), while Julius Malema, a former leader of the ANC Youth League also left in 2013 to form the Economic Freedom Fighter (EFF). The breakaway party phenomenon is not new in South Africa; it cut across the major political parties (Sarakinsky & Fakir, 2015). However, it has implications for public trust in the government because the factors responsible for such a split are more within the context of rivalry among the party leadership for the protection and promotion of individual interests rather than the improvement of the socioeconomic wellness of citizens.

3 Governance Scholars have viewed governance from different perspectives. While some see it as a process, others defined it as institutionalized norms and beliefs that guide the process. Merriam-Webster Dictionary defined governance as “the act or process of governing or overseeing the control and direction of something (such as a country or an organization.”1 This definition reiterates the importance of the actors who are saddled with the responsibility of coordinating the activities of the state and interacting with the various segments of society to promote common goals and objectives. Kaufmann, Kraay, and Mastruzzi (2004, p. 254) define governance as “the traditions and institutions by which authority in a country is exercised,” including the processes associated with the selection and replacement of government officials and “the capacity of the government to formulate and implement sound policies, and the respect of citizens and the state for the institutions that govern economic and social interactions.” This perspective harps on both the institutional and process components of governance. This means that governance pervades all activities of the government in every society. Central to this is the emphasis on process, the “how” of making and implementation of decisions and the accountability responsibility of decision makers. The United Nations Economic and Social Commission for Asia and the Pacific (UN ESCAP) defined governance as “the process of decision making and the 1

https://www.merriam-webster.com/dictionary/governance

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process by which decisions are implemented (or not implemented).” This makes the government the primary actor with other stakeholders who play critical roles outside the formal structures of the government to advance public policy. This includes the “formal and informal actors involved in decision making and implementing the decisions made and the formal and informal structures that have been set in place to arrive at and implement the decision” (UN ESCAP, 2009). The essence of public policy is to advance the interests of citizens. Thus, the focus of governance is more on social practices and activities than on the state (Bevir, 2012). Governance refers, therefore, to all processes of governing, whether undertaken by a government, market, or network, whether over a family, tribe, formal or informal organization, or territory, and whether through laws, norms, power or language” (Bevir, 2012, p. 2).

In other words, governance entails all processes associated with the governing of any society or organization. Governance entails five principles of openness, participation, accountability, effectiveness, and coherence (Pomeranz & Stedman, 2020). These principles define the nature of the nature and components of the process as well as the outcomes. In other words, effective or good governance “ensures that corruption does not occur, voices of minority and vulnerable members of society are accounted for, and that decision making is responsive to current and future needs of society” (Pomeranz & Stedman, 2020, p. 428). This implies that legitimate actions and decisions of the government should reflect the voice of citizens directed toward inclusive accountable performances. The public participation component represents the primacy of the public voice, directly or indirectly, in shaping the outcome of the policy process. Central to this is the legislative structure that symbolizes the collective will of citizens. In a constitutional democracy, as practiced in South Africa, governance is central to the legislative process as the institutional actor in the public policy cycle. The legislature, therefore, is crucial in political governance. Political governance comprises the political processes that guide the exercise of public authority in the policy process to advance human needs (Lee, 2019). In other words, political governance has to do with the use of state power to promote the delivery of goods and services in the overall interests of citizens. Political governance connotes the pursuance of the interests of members of society in a manner that would avert and avoid dangers and injuries to human nature (Ngai, 2019). As Ngai (2019) has noted, people assigned with leadership responsibilities in the state should possess moral character in the exercise of power. In other words, governance should be characterized by transparency and accountability. In the exercise of the power of the state, especially in decentralized democratic systems like South Africa, the legislature and the executive branches of the government are the central institutional actors in the public policy process. Section 43 of the Constitution of the Republic of South Africa 1996 as amended empowers the country’s parliament with legislative authority. Similarly, Section 85 of the Constitution vests the president with executive authority of the state. These two statutory

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instruments effectively bestow upon the legislature and the executive the governance responsibility of the country. More importantly, however, given the nature of the governing system, the constitution empowers the legislature to appoint the president among members of the parliament. Section 42 of the Constitution states thus: The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action (Constitution of the Republic of South Africa 1996 as amended).

The South African Parliament comprises two chambers: the National Assembly (NA) and the National Council of Provinces (NCOP). This provision defines the democratic elements of the legislative institution as the appointment of the president, serving as public participation forum, lawmaking, and oversight of executive action. In effect, the legislature is the heartbeat of the South African constitutional democracy. Given the importance of oversight in governance, it means that the legislature is the central institutional actor in political governance. The South African parliament has coverage that extends to all levels of government. However, this all-important institutional actor has been unable to define democracy in the context envisaged by the drafters of the constitution. Thus, it is safe to state that the South African legislature is a political clog in the wheel of democratic governance.

4 Democratic Structures and Governance in South Africa South Africa has good democratic structures designed to promote good governance. The constitution prioritizes compliance with democratic practice. The principles of public administration enshrined in the constitution, for instance, are a cardinal statutory mandate for the promotion of good governance. Section 195 (1) of the Constitution provided that public administration at all levels of government should be governed by the enshrined democratic values and principles. Thus, the constitution is the primary democratic structure that holds every segment that defines the country’s constitutional democracy. It has been described as “a progressive constitution that could promote democracy and a credible rule of law regime” (Africa Union (AU), 2022, p. 9). The multiparty system, a cardinal feature of a democratic society, allows free competition for state powers among different political parties. The constitution makes provisions for free competition for powers among different political parties. Even though the ANC has been dominating the government since 1994 (Isike & Onapajo, 2017), nevertheless, recent developments have witnessed a dwindling electoral fortune of the party. For instance, in the 2021 local government election, the party lost some major metropolitan and municipality governments to the opposition parties. In some

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cases, ANC had to enter into coalition agreements with the opposition to form a government. But in recent years, viable opposition parties are being established regularly to participate in elections. These parties continue to give South Africans alternative policy choices during elections, and as a result the representation of opposition parties has been increasing steadily at all levels of governance over the years (Africa Union (AU), 2022, p. 9).

Despite these democratic features promoted by the constitution, the nature of the political system does not encourage accountability. Even though there are entrenched accountability mechanisms through which the legislature could hold the executive accountable, the attitudinal disposition of the political elites weakens their effectiveness (Fagbadebo, 2019; Africa Union (AU), 2022). Nevertheless, the governing system stifles “direct accountability relationship between the elected officials and the electorate; and the tendency for elected representatives to be more loyal to party leaders than the electorate despite the forums of engaging with legislators at both the national and local levels” (Africa Union (AU), 2022, pp. 9–10).

A new development in this regard, however, is the approval of an independent candidate, via the judgment of the Constitution Court. The court declared, unconstitutional, the electoral act that banned independent candidature (Speaker of the National Assembly and Another v New Nation Movement NPC and Others [2022] ZACC 24). Given this judgment, individual candidacy might swell in the contest for parliamentary seats at the parliament. This development could serve as a check on the mode of accountability in the country’s political system. In 2011, the National Planning Commission (NPC) undertook and submitted its diagnostic report on the state of democracy and good governance in South Africa. The report identified major challenges that were barriers to growth and development. Parts of these challenges include unemployment, unsustainable economy, quality of public health, escalation of corruption, and inequality.

5 The Crisis of Governance in South Africa In recent times, social unrest, mostly occasioned by poor service delivery, has become a common feature in South Africa. A report by the Institute for Security Studies (ISS) indicated an average of 2.26 service delivery protests daily since 2013 (Martin, 2021). Even though this number reduced to “nearly one per day in 2018 when Cyril Ramaphosa became president,” the “number started growing steadily again in 2019 to about 2.5 a day on average” (Martin, 2021). In 2020, there were over 900 cases of service delivery protests across the country, with an average of 8 protests per day (Martin, 2021). The height of the protests was July 2021 violent protests and unrest in KwaZulu-Natal and Gauteng Provinces (Visagie et al., 2021). The riots claimed more than 300 lives and the destruction of properties worth over R50 billion (US$3 billion) with massive damage to the national economy. The damage to infrastructural facilities as well as business premises led to the loss of

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jobs, thereby increasing the unemployment figures (Erasmus, 2022). The remote cause of the riot was rooted in the crisis of governance that pervaded the country. The panel that was set up by President Cyril Ramaphosa to investigate the uprising fingered poor service delivery as the remote cause of the violence. Poorly rolled out programmes of service delivery and unacceptable living conditions, the state of the economy, and the persistent levels of poverty served to provide the ripe environment to light the tinder box that was the incarceration of former President Zuma that led to many poor and desperate people joining in the looting, alongside those more calculating in their objectives and motivation (Report of the Expert Panel into the July 2021 Civil Unrest, p. 127).

The panel also blamed the social unrest on the scourge of accountability failure that triggered persistent poor service delivery and exacerbated the crisis of governance. The entrenched culture of violence in South Africa was also a contributing factor to the spate of insecurity that pervades the country. Coupled with the division within the governing party, political forces fuelled the crisis, thereby exposing the weak capacity of the state. The notion of an insurrection suggests that there were key politically motivated actors who exploited weaknesses in the state’s capacity to drive a general campaign of violence. The violence undermined the legitimacy of state institutions and left the nation psychologically traumatized (Visagie et al., 2021).

President Ramaphosa alluded to this insurrection school of thought. Shops, businesses, and warehouses were looted and torched and people [were] being beaten and humiliated. We felt uncertain, and fearful for ourselves, our loved ones in our country. We felt the greatest sense of betrayal that some amongst us would go so far as to plot to destroy this very country we have spent the past 28 years to build (cf. Visagie et al., 2021).

This development has implications for the country’s democratic credentials and governance. Party politics as a democratic value should complement rather than destabilize the government. Scholars have noted the trend whereby party politics is becoming a threat to democratic practices (Daly & Jones, 2020). They have described this in different terms, such as “constitutional retrogression (Huq & Ginsburg, 2018), constitutional capture (Bard & Pech, 2019), and democratic decay (Daly, 2019). In a constitutional and representative democracy, political parties offer the platform for citizens to select their representatives in government. This means that citizens’ participation in the democratic process is tied to political parties. Thus, political parties are essential democratic institutions. While factions and rivalry are parts of the developing forces of political parties, the nature of the crisis within the ranks of the governing ANC in South Africa constitutes a threat to democratic governance. The desire for pecuniary gains and opportunities is the motivation for participation. Hence the pervasive cases of political killings with their consequences on governance. Insecurity has become a recurring phenomenon in South Africa, while the political elites bicker over the crises within their political organizations. High unemployment, poverty, and inequality are parts of the drivers of criminal activities that have bolstered insecurity in the country (Evans, 2020; Haas, 2020; Lancaster,

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2021). These are not dividends of democracy. The spate of the crisis of governance continues to heighten instability, thereby threatening the country’s constitutional democracy.

6 Toward a Renewed Democratic Governance in South Africa In a democracy, citizens’ expectations of the government are not always actualized. Every democracy is characterized at one level or the other, by what Norris (2011, 2012) has described as a democratic deficit. Essentially, there exists “an undeniable gap between citizens’ expectations of how democracy should function and their evaluations of how democracy actually operates” (Medvic, 2019, p. 1). The extent of the gap will determine the level of public trust in and adherence to the government. In developing countries, this gap is often wide, hence the spate of public service protests occasioned by the crisis of governance. Postapartheid South Africa has high expectations from the government given the exclusion policies and the oppression of the colonial government. The input version of democratic legitimacy characterized the early part of the black-led regime that started in 1994. Postapartheid elections witnessed massive support from black South Africans who were eager to see the end of the domination of the white minority in the country’s political space (Callinicos, 1994). For the first time, the black majority in South Africa voted. Their conquest of the citizenship rights denied them under white rule represented far more than simply the elimination of the last vestiges of formal colonial domination in Africa. It was the culmination of a struggle that the oppressed majority had waged to win acceptance of their claim to be recognized as human beings, of equal value to, and with the same rights as their oppressors (Callinicos, 1994, 2355). Nevertheless, the quality and value of democratic governance have since dwindled, and citizens are more interested in the substance of the decisions of the government. A few years after the election, the tide began to change, as the governing party found itself in negative perceptions of citizens. In newspaper columns, on radio talk shows, blogs and social media, the ANC is facing a public outcry, accused of being corrupt, ineffective, wasteful and out of touch with the hardships faced by South Africa’s impoverished masses. Even prominent anti-apartheid figures are publicly disparaging the ANC leadership, calling its credibility into question (Raghavan, 2012).

Loyalists of the ANC in the Jabob Zuma years agreed that the “party is divided and facing a crisis of leadership, as President Jacob Zuma battles allegations of misuse of public funds to renovate his private residence” (Raghavan, 2012). In 2012, a political analyst, Robert Schrire explained the frustration of citizens this way: “Now, the honeymoon is pretty much over. What we are seeing is that the average black South African is no longer blindly loyal to the ANC. That person feels angry

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and betrayed” (cf. Raghavan, 2012). This perception has not changed. Indeed, it has reduced the electoral fortunes of the governing party (Isike & Onapajo, 2017). The municipal election results since 2000 indicate the rise and fall moment of the ANC. In 2000, the ANC had 59.39% electoral support, in 2006 and 2011, it increased to 64.82% and 61.95%, respectively. In 2016, the party began a descent with 53.9% and in 2021, 45.59% (Independent Electoral Commission, 2021). In national elections, the ANC recorded giant strides in 1999 and 2004 with 63.35% and 69.69%, respectively (Independent Electoral Commission, 2019). However, the descent began in 2009 with 65.90%, followed by 62.15% in 2014 and 57.50% in 2019 (Independent Electoral Commission, 2019). The Democratic Alliance (DA), the leading opposition party, also witnessed plummeting electoral fortune in the 2021 municipal polls with 22% as against its 27% support in 2016. The radical Economic Freedom Fighter (EFF) whose ideology appeals mostly to the youth is gaining ground with 10% support in the 2021 municipal election as against its 8% support in the 2016 polls. The plummeting fortunes of the ANC, in such a magnitude, is attributable to the high level of public discontentment and frustration occasioned by the persisting crisis of governance. In its 2022 report, the Bertelsmann Stiftung’s Transformation Index (BTI) noted that South Africans “have become increasingly frustrated at state corruption and the slow pace of socioeconomic development” persists (Stiftung, 2022). Exceptionally high levels of unemployment and inequality characterize South Africa’s economy, while poverty remains widespread. The economy is marked by the legacies of apartheid and racial discrimination, with black South Africans most likely to be poor and unemployed and white South Africans experiencing low levels of poverty and unemployment. Women are also more likely to be unemployed and poor than men. Income inequality is among the highest in the world. . . (Stiftung, 2022).

This is not a good report of democratic dividends. Even though the ANC remains the dominant party in the country, this status will soon fade away. Unlike the colonial and apartheid era, citizens’ participation in the governing of the state is becoming more popular, even though with resentment. Given the worsening crisis of governance exacerbated by mismanagement of public resources, the South African public institutions are losing public trust (Moosa & Hofmeyr, 2021).

7 Conclusions South Africa faces many challenges. A major one is the growing erosion of trust in the government and state institutions. This is partly because state institutions, especially the executive arm of government, including the SOEs have failed the people through unethical behavior and glaring ineffectiveness in service delivery (Africa Union (AU), 2022, p. 9). Thus, poor service delivery has remained a critical yardstick for measuring the performance of the government at all levels. Different public reports pointed to this challenge as an obstacle to the realisation of democratic

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governance in the country. Thus, public denouncement of the quality of public services has remained deafening, and this is worrisome. The service delivery gap is a derivative of the weakness of the capacity of the South African state in the face of unethical practices and behaviors among the political and bureaucratic leadership.

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Fagbadebo, O. M. (2019). An overview of legislative oversight and accountability mechanisms in Nigeria and South Africa. In O. M. Fagbadebo & F. A. Ruffin (Eds.), Perspectives on the legislature and the prospects of accountability in Nigeria and South Africa (pp. 19–44). Springer International Publishing. Haas, M. (2020, January 21). South Africa fails to get to the bottom of killings in KwaZulu-Natal. The Conversation. Retrieved June 24, 2022, from https://theconversation.com/south-africafails-to-get-to-the-bottom-of-killings-in-kwazulu-natal-128167 Hibbing, J. R., & Theiss-Morse, E. (2002). Stealth democracy: Americans’ beliefs about how government should work. Cambridge University Press. Huq, A., & Ginsburg, T. (2018). How to lose a constitutional democracy. UCLA Law Review, 65, 78–169. Huntington, S. P. (1991). Democracy’s third wave. Journal of Democracy, 2(2), 12–24. Huntington, S. P. (1993). The third wave: Democratization in the late twentieth century. University of Oklahoma Press. Independent Electoral Commission (IEC). (2019). 2019 National and Provincial Elections. Retrieved June 12, 2022, from https://results.elections.org.za/dashboards/npe/app/dashboard. html Independent Electoral Commission (IEC). (2021). Municipal election results. Retrieved June 12, 2022, from https://results.elections.org.za/dashboards/lge/ Isike, C., & Onapajo, H. (2017). The decline of a dominant African political party: The case and future of South Africa’s African National Congress (ANC). Politeia, 36(2). https://doi.org/10. 25159/0256-8845/2486 Kaufmann, D., Kraay, A., & Mastruzzi, M. (2004). Governance matters III: Governance indicators for 1996, 1998, 2000, and 2002. The World Bank Economic Review, 18(2), 253–387. https://doi. org/10.1093/wber/lhh041 Lancaster, L. (2021, June 14). South Africa needs a murder reduction strategy. ISS Toda. Retrieved May 12, 2022, from https://issafrica.org/iss-today/south-africa-needs-a-murder-reductionstrategy Lee, Y. (2019). Political governance, law, and economic development. Law and Development Review, 12(3), 723–759. https://doi.org/10.1515/ldr-2019-0039 Lee, Y., & Schachter, H. L. (2019). Exploring the relationship between trust in government and citizen participation. International Journal of Public Administration, 42(5), 405–416. https:// doi.org/10.1080/01900692.2018.1465956 Longley, R. (2021, August 3). Representative democracy: Definition, pros, and cons. Thought.co. Retrieved July 3, 2022, from https://www.thoughtco.com/representative-democracy-definitionpros-cons-4589561 Martin, G. (2021, April 20). 900 service delivery protests in South Africa over six months. Defence We. Retrieved July 2, 2022, from https://www.defenceweb.co.za/featured/900-service-deliveryprotests-in-south-africa-over-six-months/ Medvic, S. (2019). Explaining support for stealth democracy. Representations, 55(1), 1–19. https:// doi.org/10.1080/00344893.2019.1581076 Moosa, M., & Hofmeyr, J. (2021). South Africans’ trust in institutions and representatives reaches new low. Afrobarometer Dispatch No. 474, August 24 (pp. 1–17). Ngai, T. C. (2019). The debates on human nature and political governance in ancient China: Mencius, Xunzi and Han Feizi. Open Access Library Journal, 6(4), e5369. https://doi.org/10. 4236/oalib.1105369 Norris, P. (2011). Democratic deficit: Critical citizens revisited. Cambridge University Press. Norris, P. (2012). The democratic deficit: Canada and the United States in comparative perspective. In P. T. Lenard & R. Simeon (Eds.), Imperfect democracies: The democratic deficit in Canada and the United States (pp. 23–50). University of British Columbia Press. Pomeranz, E. F., & Stedman, R. C. (2020). Measuring good governance: Piloting an instrument for evaluating good governance principles. Journal of Environmental Policy & Planning, 22(3), 428–440. https://doi.org/10.1080/1523908X.2020.1753181

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Raghavan, S. (2012, November 3). In South Africa, disillusionment with the party that ended apartheid. The Washington Post. Retrieved on June 23, 2022, from https://www. washingtonpost.com/world/in-south-africa-disillusionment-with-the-party-that-ended-apart heid/2012/11/03/9595a1bc-122b-11e2-9a39-1f5a7f6fe945_story.html Report of the Expert Panel into the July 2021 Civil Unrest 29 November 2021 Russo, G. A., Avelino, G., & Guarnieri, F. H. E. (2022). Democratic principles and performance: What do the experts think? Journal of Politics in Latin America, 14(2), 224–236. Sarakinsky, I., & Fakir, E. (2015). A brief history of factionalism and new party formation and decline in South Africa: The case of COPE. Journal of Africa Elections, 14(1), 60–84. https:// doi.org/10.20940/JAE/2015/v14i1a4 Stiftung, B. (2022). Bertelsmann Stiftung’s Transformation Index (BTI) 2022 Country Report—South Africa. Gütersloh: Bertelsmann Stiftung. Retrieved July 1, 2022, from https://bti-project. org/en/reports/country-report/ZAF Strebel, M. A., Kübler, D., & Marcinkowski, F. (2019). The importance of input and output legitimacy in democratic governance: Evidence from a population-based survey experiment in four West European countries. European Journal of Political Research, 58(2), 488–513. https:// doi.org/10.1111/1475-6765.12293 United Nations Economic and Social Commission for Asia and the Pacific (UN ESCAP) 10/07/ 2009. What is Good Governance? Retrieved on July 4, 2022, from https://www.unescap.org/ resources/what-good-governance Visagie, J., Turok, I, & Swartz, S. (2021, August 18). What lies behind social unrest in South Africa, and what might be done about it. The Conversation. Retrieved July 5, 2022, from https://theconversation.com/what-lies-behind-social-unrest-in-south-africa-and-whatmight-be-done-about-it-166130

A Critique of South Africa’s Quest for Accountable, Efficient and Effective Public Service Isioma U. Ile

1 Introduction The post-democratic South African state inherited huge socio-economic disparities from the apartheid government in 1994. The governance structure before independence was underpinned by the divisive philosophy of the apartheid government, and this brought about huge inequalities in society with racist and socio-economic dimensions. The new government sought to tackle the challenges and improve governance through a range of strategies, including acceding to various international and continent protocols, of which the African Peer Review Mechanism was one. South Africa acceded in 2003 and was one of the first countries to voluntarily do so. With the attainment of political independence and in pursuit of improved governance, much was expected by South Africans from their young democracy in terms of improving the quality of life of the majority of citizens. While some progress has been made about social security, access to education, etc., there are still many challenges, many of which can be linked to the governance principles of efficiency, effectiveness and accountability. Consequently, the Country Review Report (CRR, 2007), Country Self-Assessment (CSAR) Report, First Progress Report (2009), Second Progress Report (2010), Third Progress Report (2014), and many other documents all reflected key objectives pursued by South Africa. A key theme in that pursuit was identified as democracy and political governance. Within that broad theme of democracy and political governance, some objectives were declared and committed to by South Africa. One of those objectives (number 5) was to “ensure accountable, efficient and effective public office holders and civil servants” (CRR, 2007). The identified themes and objectives are cross-cutting in nature with

I. U. Ile (*) School of Government, University of the Western Cape, Cape Town, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_2

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implications for all spheres and sectors of government and ultimately on the quality of life of citizens. This particular objective which is in pursuit of accountable, efficient and effective government is well aligned to provisions contained in chapter 10 of the constitution of South Africa (1996) which deals in its entirety with the public administration given its importance for service delivery. South Africa’s development, thus far, has certainly been sluggish as it remains a country of two worlds, both first world and third world elements. With service delivery quality still better off in the economically well off and previously white-only areas (thus described as first world) while the previously black townships still deal with third-world survival issues and have had marginal improvements. With that backdrop, this chapter seeks to present the state of play about the elements of accountability and efficient and effective service delivery by the South African government in 2021. Where there have been successes and failures, some of these will be reflected in looking at policy, principle and practice, given that the objective is both transversal and critical in the developmental trajectory of the nation.

2 Key Legislative Instruments of the South African Public Service: An Overview The South African Public service is the primary mechanism through which government meets its service delivery obligation across a range of sectors such as human settlement, roads and infrastructure, water, electricity and sanitation. In the main, the government uses two key strategies for service delivery, namely direct execution or outsourcing. Regardless of the strategy of execution utilized in public administration (as performed by the state through various departments at national, provincial or local levels of government and/or their agencies), there are key legislative dictates, guidelines and principles in place to govern their functioning. Concerning policy frameworks, South Africa has a plethora of governance legislative provisions which on paper seem well suited and adequate. These key legislative instruments which underpin the functioning of the public service include the Constitution of the Republic of South Africa (1996), specifically chapter 3 of the constitution (1996) which seeks to promote a cooperative rather than a competitive governmental set-up, where national, provincial and local governments all work in sync to enhance public administration and ensure quality service delivery. In addition to chapter 3, Chapter 10 of the constitution is also key as it provides the basic values and principles governing public administration across all spheres of government and when read with chapter 2 on the Bill of Rights (which safeguards the rights of citizens) all together promote the principle of accountability as citizens have certain guaranteed constitutional rights which they can take, against the state, if the state has not met its obligations, e.g. the right to protest. In this section below, particular attention is drawn to provisions of chapter 10 of the constitution and the Batho Pele (People First) principles. Both are key legislative

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and policy provisions for the attainment of an accountable, efficient and effective public administration and have been in place for well over 20 years. (a) Provisions of Chapter 10 of the South African Constitution Section 195 (1) of chapter 10 of the South African Constitution (1996) specifically states as follows; “Public administration must be governed by the democratic values and principles enshrined in the constitution, including the following principles: (a) (b) (c) (d) (e) (f) (g) (h) (i)

A high standard of professional ethics must be promoted and maintained. Efficient, economic and effective use of resources must be promoted. Public administration must be development-oriented. Services must be provided impartially, fairly and equitably and without bias. Peoples needs must be responded to, and the public must be encouraged to participate in policymaking. Public administration must be accountable. Transparency must be fostered by providing the public with timely, accessible and accurate information. Good human resource management and career development practices, to be maximize human potential must be cultivated. Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation”.

(b) White paper on transforming Public Service Delivery (1997)—Batho Pele principles. The White Paper on Transforming Public Service Delivery (1997) is a strategic policy document that clarifies how public administration should deliver services to the citizens. It prescribes principles that must be upheld in the provision of services to citizens to safeguard services that citizens are entitled to and the quality (South Africa Department of Public Service and Administration, 2003). These Batho Pele principles include the following: • Consultation: this requires public administrators to treat citizens as “customers” by placing them at the centre of their activities, listening to their requests and responding appropriately to their needs when deciding what services should be provided. • Access: this suggest that citizens are not being done a favour when services are delivered to them. Rather, every effort should be made to ensure that citizens can access the services provided easily and comfortably as possible. • Courtesy: in the process of delivery services to citizens, they should be handled with the utmost care, treating them with consideration and respect. • Setting Service Standards: this principle requires making sure that clear service standards are determined and communicated to service recipients and that the promised level and quality of services are always of the highest possible standard.

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• Information: this implies providing citizens with relevant and timely information on the services that are available to them; • Openness and Transparency: in the process of servicing citizens, officials are expected to allow recipients of services to ask questions and these should be responded to in an honest manner; • Redress: Where there are lapses in the delivery of services, service recipients should be able to seek and access opportunities for corrective action including institutions and officials swiftly responding and rectifying conditions when standards of service have fallen below the promised level. • Value for Money: this principle seeks a return on investment for services rendered by ensuring that such services indeed add value to the lives of the recipients. • Encouraging Innovation and Rewarding Excellence: this requires and recognizes when administrators have gone the extra mile to ensure service delivery is both effective and efficient. • Customer Impact: this principle is in pursuit of outcomes that have collectively taken advantage of the Batho Pele principles and are demonstrable as having improved the service recipients’ quality of life. • Leadership and Strategic Direction: this principle promotes leadership and accountability, ensuring that the strategic goals of the various government units are executed and attained.

3 Conceptualizing the Notions of Accountability, Efficiency and Effectiveness Quality of service delivery attained by the South African public administration machinery is key to achieving the objective that seeks to ensure accountable, efficient and effective public office holders and civil servants. Kaufmann, Kraay and Zoido-Lobaton (1999) present six main dimensions of good governnace (and amongst these are the key concepts of accountability, efficiency and effectiveness that frame the discussions in this section of the chapter) as follows. • • • • • •

Voice and accountability. Government effectiveness including public policy and service delivery. Control of corruption, which is linked to resource efficiency. The lack of regulatory burden. The rule of law. The independence of the judiciary.

These six main dimensions are in many ways comprehensive. However, the conceptualization of each is varied amongst scholars. In exploring the concept of accountability, it ranges from Mosher’s (1979) assertion that accountability is essentially an informing function including seeking insights into questions of who is accountable to whom, and for what, to Dowdle (2006), who argues and portrays

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differing conceptualizations and frames for studying accountability. He states that, even when scholars notice non-convergence in their ideas, they make no attempt to provide a consistent analytical framework. Thus, according to Ile and Makiva (2017), accountability is and remains a complicated concept when engaging in discourse analysis. This is so because there are various divergent dichotomies including Achen and Bartels (2002), Healy and Malhotra (2010), Lenz (2012), Lupia and McCubbins (1998) in Bovens (2010) all of whom are seeking to provide some understanding of the term accountability, especially when reflecting from a public accountability viewpoint (related to who is accountable to whom and for what). Thus, accountability has the potential to pose challenges when it comes to its measurements because the concept has various overlapping dichotomies. According to Blind (2011), the “dichotomies of accountability can be explained along the prescriptive, descriptive, operational versus longitudinal, political versus legal/judicial, institutional versus social accountability”, amongst others. However, even these categories are neither thorough nor mutually exclusive. The dichotomy of institutional versus social accountability divide is identified as the main focus of this chapter. It is also known as “the supply-driven versus the demand-led or top-down versus bottom-up accountability” (Blind, 2011). The institutions of accountability are the various institutions that have a mandate to deliver on specific goals. The public service is one such institution with robust structural arrangements to ensure accountability. In this regard, governmental players including audit committees, management, monitoring and evaluation units and oversight bodies like the parliament and the judiciary have a responsibility to ensure that expected services are indeed delivered. Social accountability, on the other hand, is made up of a myriad of formal and informal, as well as direct and indirect engagement with service recipients, civil society and citizen engagement in public affairs to wield accountability (Ackerman, 2005). Both are different sides of the accountability coin as institutional accountability seeks administrative accountability, while social accountability seeks political and public accountability. These dimensions of accountability accordingly could be “active” or “passive” (Bovens, 2010). Thus, it will appear that the nature of accountability in governance could be varied as it could be a constant element within the governance space where it is engaged actively, or it could be passive or lukewarm or even in a disengaged state. Generally, the quest for administrative accountability is used primarily as a normative concept capturing what is appropriate or acceptable behaviour, e.g. the code of conduct of public servants in South Africa. Such declared norms and set standards are for the evaluation of the behaviour of public actors (Bovens, 2010), including public officials and their political principals. It can further be viewed beyond norms as it gauges institutional pursuits with regard to how state actors can be held to account (Bovens, 2010). These elements of normative and descriptions according to Frink and Klimoski (2004) suggest that “social systems, in general, can be defined in terms of common sets of shared expectations for behaviour, and accountability could be seen as the ‘glue’ that binds social systems together”.

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Within the realm of exploring accountability, both terms of efficiency and effectiveness are ineluctably engaged as they are interlinked. In unpacking accountability, especially from a public administration perspective, official and their institutions are expected to develop, implement various policies and deliver appropriate services to recipients of those services. However, the delivery of the service which may include some activities should be executed with proper oversight ensuring that resources made available are judiciously deployed, as this may require accountability concerning how well the resources were utilized in service provision. That measure of determining a balance of input versus outputs suggests if the service delivered was efficient or not. Likewise, the concept of effectiveness is integral to accountability as it measures the extent to which an expected goal has been achieved and thus provides the yardstick or standard to hold an official or institution accountable.

4 A Synopsis of South African APRM Issues (Related to the Objective of Accountable, Efficient and Effective Public Service) APRM declared some objectives under the theme of democracy and political governance. The objective in view for this chapter is objective number 5 which reads “ensure accountable, efficient and effective public office holders and civil servants” (CRR, 2007). A review of the various APRM reports including the Country Review Report (CRR), Country Self-Assessment Report (CSAR), the three APRM progress reports (2009, 2011 and 2014) and the National Plan of Action (NPoA) suggest that the issues around accountability, effectiveness and efficiency of the public service remain a challenge and is acknowledged. According to the Country Review Report (CRR) and the CSAR (Country Self-Assessment Report) of 2007, both of which admit that despite the strong regulatory and administrative measures in the country, implementation and service delivery have both lagged in many ways, especially at provincial and local levels, where services delivery is most felt by citizens. The reports further suggest that this is due to a lack of capacity, inexperience in delivery as well as non-responsiveness of public officials to the needs of communities. As such, service delivery challenges remain, and innovative initiatives like the Batho Pele principles are either not implemented at all, partially implemented, or selectively implemented by delivery agencies, with little or no accountability enforced. In other to turn things around, the reports further note that accountability must be improved. In the CRR, some recommendations were made and these include the following: – Stepping up competence and accountability of public service across the spheres of government. – Development of strategies for the development, retention and professionalization of the public service for effective service delivery.

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– Developing strategies to attract back various skilled personnel to assist the government with the task of improving service delivery. Following the review of the CRR, CSAR, NPOA, and the three progress reports on South Africa’s implementation of the APRM recommendations (2009, 2011 and 2014), the relevant issues to the objective of ensuring an efficient, effective and accountable public service as identified in the reports are presented below. This is also followed by a summary of cross-cutting issues, as contained in all three reports. In the National Plan of Action, the challenge of ensuring that government is accountable, efficient and effective requires attention; thus, the strategic thread for improving effectiveness, efficiency and accountability finds its way into key pursuits in the NPoA as captured in the related objectives below. – Build civil society structures for increased participation in the provision and monitoring of public services. – Decrease levels of corruption, build national values and integrity across all three spheres of government and in all sectors of society. – Greater efficiency and effectiveness in public expenditure management and monitoring. – Service delivery is improved. – Improved effectiveness and efficiency of the education system at all levels. A review of the reports also shows that the issues of accountable, effective and efficient administration are not only relevant to the themes of democracy and political governance, where it is specifically mentioned as an objective. This issue does have implications for the other APRM themes used for reporting purposes, namely economic governance and management, corporate governance and socioeconomic development. This, therefore, makes this objective of pursuing accountability, effectiveness and efficiency a cross-cutting issue. Below are a few selected excerpts and insights from the various reports linked to issues of effectiveness, efficiency and accountability (Table 1).

Table 1 Selected excerpts from Country Review Report (2007) Accountability

Efficiency

Effectiveness

“To ensure an effective and efficient civil service, South Africa encourages interactions between its public servants and the people they serve and to whom they are accountable through the initiatives such as Izimbizo (public participation and interaction) Batho pele. . .” “The acute shortage of skills especially financial expertise is affecting the governments capacity to manage programmes spending and social service delivery” “A critical shortage of skills exists resulting in weak implementation capacity, especially at local government level”

Source: Country Review Report (2007)

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5 Analysis and Emerging Insights The APRM objective No 5 of pursuing accountable, effective and efficient public administration as pointed out in the preceding section is both a critical and crosscutting objective, relevant across the four major reporting themes of democracy and political governance, economic governance and management, corporate governance and socio-economic development. However, a review of the issues captured for the country’s focus in all three reports (see Table 2) suggests that the objective is not identified as a cross-cutting area and neither was it selected as a priority area (see Table 3). The exclusion of objective 5 as both cross-cutting areas (see Table 2) and as foci areas (see Table 3) appears to be a strategic error as none of the other objectives can be attained, without state machinery that is effective, efficient and accountable. Thus, it makes sense that objective 5 should have been strategically pursued in a comprehensive and targeted approach. It indeed can be argued that non-pursuance of objective 5 is missed opportunity to address service delivery as almost 15 years after the first review, significant service delivery challenges remain in 2021. Having noted the above, there are identifiable elements of related issues to objective 5, subsumed under various priority objectives in the NPoA, thereby pursuing it in a fragmented manner and not in a consolidated and intentional manner. These elements related to objective 5 are itemized below and would provide the framework for further engagement. Below is a streamlined list of main emerging issues from the various South African Peer Review Mechanism (APRM)-related reports that are related to the objective of an accountable, effective and efficient public administration. The following sub-themes will provide the framework for the analysis in terms of tracking the status of implementation; they are as follows: • • • • • •

Regulatory framework for service delivery. Service delivery. Monitoring government performance. Corruption in the public service and state capture. Capacity building, training and professionalization of the public service. Accountability.

6 Regulatory Framework for Service Delivery South Africa has a very well-developed and comprehensive regulatory framework. These regulatory instruments all together capture the direction and the vision for the South African state including accountable, effective and efficient machinery for delivery. The constitution sets the tune with some relevant chapters that support the objective of an accountable, effective and efficient state. Relevant sections include chapters 2 and 3 of the constitution and more specifically section

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Table 2 Summary of main themes pursued (in relation to APRM objective 5) Progress reports Progress report 1 (2009) This was the first comprehensive report since the CRR was released in November 2007. It was published in 2009 and covered the period November 2007–December 2008. It aimed to report on the implementation of various issues identified in the CRR and committed to the NPoA

Main related themes – Participatory democracy and a people-centred government – Blockages to service delivery (under economic governance and management) – Corruption undermines national integrity – Improved effectiveness and efficiency of the education system at all levels – Capacity development Progress report 2 (2011) – Increased civil society participation This is the second implementation report, highlighting – Advancement of gender equality progress made in the years 2009–2010). Although the – Access to information on human report was released in 2011 rights and institutions of justice – Tackling corruption – Establishment of special anticorruption Units and/or inspectorates at all spheres of government – Watch bodies to tackle corruption – Establishment of the interministerial committee on corruption – Development of an integrated financial management system, financial disclosures and tackling conflict of interests instruments – Institutionalization of democracy – Institutionalization of traditional leadership – Civil society structures seek Progress report 3 (2014) This report covers the period 2010–2013. It was released increased opportunities to contribute in 2014. The report is limited to progress made in iden- to and participate in the delivery and monitoring of public services tified thematic areas and explores further some issues – Corruption undermines national raised in the last 2 progress reports. Of interest are the integrity issues related to objective 5 (on issues of effective, effective and accountable public office bearers and pub- – Underdeveloped capacity and skills in public expenditure management lic service). and monitoring – Blockages to service delivery Cross-cutting issues identified from the various progress reports First report (2009) Second report (2011) Third report (2014) – Reform of management style – Xenopho– Land reform – Weakness of data to support management bia – Violence against – Poor remuneration leading to loss of skills – Racism women and children – Ineffective HR practices – Crime – Xenophobia – Red tape – Racism – Weakness of coordination between departments and – Managing diversity across spheres (continued)

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Table 2 (continued) Progress reports

Main related themes – Affirmative action – Black economic empowerment

Source: Configured by National Plan of Action (2007–2014) Table 3 South Africa National Plan of Action (2008–2014) foci areas Thematic area Objective 2 Objective 3 Objective 6 Objective 7

Democracy and Political Governance Constitutional democracy includes periodic political competition and opportunity choice, rule of law, citizen rights and supremacy of the constitution Promotion and protection of economic, social and cultural rights, civil and political rights as enshrined in the African and international human rights Fight corruption in the political sphere Promotion and protection of the rights of women

Source: Configured by the author

195 (1) of chapter 10 of the South African constitution (1996) which has been discussed earlier, alongside the Batho Pele principles. Other instruments in the policy corridor that support the attainment of an accountable, efficient and effective public administration include the following (this list presented herein is not exhaustive); • • • • •

Public Financial Management Act (Act 1 of 1999), Promotion of Administrative Justice Act (AJA) (Act 3 of 2000). Access to Information Act, 2000 (Act 2 of 2000), Public Service Act (Act 103 of 1994). Public Service Commission Act (Act 46 of 1997).

The Public Service Regulation (2001), which is linked with the codes of conduct, clarifies amongst others the conduct of employees in managing their private interests, the performance of duties, conflict of interest and disclosures, and ethical and exemplary conduct. At the local or municipal level of government, additional governance frameworks include the followings: • the Municipal Structures Act (Act 117 of 1998), • the Municipal Financial Management Act (Act 56 of 2003), • the Municipal Systems Act (Act 32 OF 2000). All of the above seek to promote efficient, effective and accountable governance at the local level. For instance, Section 51 of the Municipal Systems Act of 2000 guides about how municipalities should be run to ensure that they are both effective in terms of achieving their goals, efficient in terms of using resources appropriately and holding appropriate persons accountable for their actions or inactions.

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These instruments mentioned above and a host of others all strengthen the policy framework and were mostly in place at the time of the APRM Country Review Report in 2007; thus, in terms of setting the stage, South Africa has done a sterling job of developing appropriate regulatory instruments that are robust and comprehensive. The implementation within the period of review, even till 2021, however, could very well be a different story and engaged under the next sub-heading.

7 Service Delivery With a solid regulatory framework in place, it could be taken for granted that implementation will follow seamlessly, however, that is not always the case, as the South African experience shows that the best policies sometimes do and can fail (Ile et al., 2019). There is a consensus amongst stakeholders that South Africa has put in place a sound framework for managing service delivery including public finance; however, the reports of monitoring agencies which are also know known as Chapter 9 institutions (as they get their mandate from that chapter of the constitution) suggest otherwise that there are issues of non-adherence, which affects the implementation and thus has an impact on service delivery (AG report 2020). The APRM reports do acknowledge service delivery issues, noting that on the positive side, the government of South Africa has somewhat achieved (when compared to the apartheid years) in the provision of social service delivery (water, electricity and housing) and some cases exceeded the set target during the past 20 years, with stakeholders stressing that the government has put in place the right policies and programmes for delivery. At the local level of government, particular mention is made of the “indigent policy” that allowed mass access to basic services within such a short period for citizens who ordinarily would be unable to access such basic yet essential services, due to their economic situations (e.g. free water and electricity services). While the government has achieved much given the state of play in 1994 where the majority has no access to basic services, much more still needs to be done—a position acknowledged in the CRR about effective service delivery, particularly sanitation and rural electrification. Concerning efficient and effective service delivery in the education sector, for instance, the 2014 Progress Report noted a mixed bag of results from national, provincial and local levels. Progress reported includes the 2 new universities (Mpumalanga and Northern cape) that were established to improve access to higher education, university infrastructural upgrades across the country, improved provision of water in schools, sanitation and electrification in the period of review, improved infrastructure for Early Childhood Development centres, accelerated implementation of the “No Fee” schools for learners from economically challenged backgrounds, with 60% of learners nationally achieving a no-fee status, and provision of learners who live far from schools. However, on the other side of the coin, there have been challenges that have impacted on efficient and effective delivery of both higher and basic education such as accommodation shortages in higher

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education, one of many issues that led to many protests led by university students under the banner “fees must fall” in 2015. These protests almost destabilized the sector for some years (2015–2017) and could flare up again. The basic education sector has also had its fair share of challenges such as inadequate provision or distribution of learning/teaching materials like textbooks, with rural schools being the most affected. Infrastructure resources including technology, libraries and laboratories are in short supply and more so in rural schools and schools in informal settlements. The SA Progress Report 2014 further reports “challenges experienced with contractors, which has resulted in the delay of altering the infrastructure impasse” in schools. This has been an area of unsatisfactory delivery with promises of the eradication of pit latrines constantly revised and moved forward. The non-elimination of poor ablution facilities in schools has led to some tragic incidents of young children who have accidentally fallen into pit latrines and died such as Micheal Komape, who died in 2014 and Lumka Mwketwa in 2018, with “more than 9000 schools across South Africa having pit latrines, according to the department of basic education’s 2016 statistics” (Sowetan, 2021). In the local sphere of governance, service delivery challenges have remained a challenge given that citizens access most basic services from this sphere of government. Following the CRR (2008) acknowledgement of challenges related to service delivery, some initiatives were put in place at the local government level, including project consolidates—relevant support to municipalities, improved intergovernmental relations and coordination and performance agreements. Furthermore, a range of other initiatives to improve service delivery such as the Integrated Rural Development Programme (IRDP), Urban Renewal Programme(URP), Local Economic Development(LED) and Municipal Infrastructure Grant (MIG) were implemented to ensure service improvement. The 2008 Progress Report notes that “While these initiatives primarily seek to address service delivery, they will also have an impact on reducing the level of unemployment”. It will appear while these initiatives created short-term employment at the time, their impact on service delivery was less than anticipated due to the increase in service delivery protests which persist till 2021, e.g. electricity-related protests in Soweto. The Daily Maverick (2021) also, for instance, reported that “the AG’s 2020 annual report revealed that out of nine local government auditees, six material irregularities occurred in three municipalities that amounted to R25 billion in financial loss (R3billion of which is known and R22 billion which is estimated). By way of illustration, R3 Billion alone could have provided an additional 1.04million people with access to water in rural areas or 753,958 more people in urban areas. Alternatively, it could have provided 16,547 more housing opportunities. To reiterate, this loss is in three municipalities alone from an audit of nine (there are 278 municipalities in South Africa)”. In response to these protests and other delivery challenges, the government has intensified mechanisms aimed at improving synergies amongst and between national, provincial and local levels to improve service delivery. This suggests that while the IGR framework and chapter 3 of the constitution on cooperative

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governance sought to promote coordination amongst others, these have remained “wicked” policy implementation challenges for the South African government. Lastly, with access to services, the one-stop centres in communities somewhat continue to enhance citizen access to government support and activities. Over the review period, it is important to indicate that the access to social security in particular over the years has been widened with many vulnerable groups being given basic support. Again, it has not been without its challenges. As such, some key services still require citizens to travel to service points, which may be far from their communities in other to access some services.

8 Monitoring Government Performance The value of monitoring government performance has increasingly been recognised by the state as reflected in numerous State of the Nations addresses during this period of review, till the present, (2007–2021). Monitoring in South Africa is largely statedriven and has not been as efficient in terms of its systematic institutionalization; hence, its effectiveness has varied from sector to sector and from sphere to sphere. A critique of the state-driven approach shows that it has been strategically placed under the Office of the Presidency in the country since 2008/2009 through the establishment of a dedicated department. The 2014 Progress Report notes that “the establishment of the Department of Performance Monitoring and Evaluation and the Planning commission “is a clear demonstration of the government’s commitment to ensuring government performance makes a meaningful impact in the lives of its people”. As such, the government identified a set of focused priorities such as: • • • • •

Priority setting through the medium-term expenditure framework. Implementation of the National Development Plan. Robust monitoring and evaluation related to the achievement of outcomes. Institutional performance monitoring. Monitoring of frontline service delivery.

Concerning these focused priorities, emerging insights suggest that the government has a successfully institutionalized priority setting through the medium-term expenditure framework, However, about the implementation of the National Development Plan, progress has been slow in some sectors with much to be done in terms of using the NDP as a tool for monitoring delivery, e.g. ensuring better alignment of focus across plans. The other issues of robust monitoring and evaluation, institutionalization of performance monitoring and the monitoring of frontline service delivery are even more critical. Emerging insights suggest that the Monitoring and Evaluation (M & E) systems are not robust enough, not comprehensive and aligned across delivery partners to generate the expected results. Monitoring and evaluation systems should be result and outcome-oriented. The approach of government (although captured as pro– outcomes-based), in the Government-Wide Monitoring and Evaluation frameworks,

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is still very much in the activity and output realm. For instance, during the period of review, there was a reported increase in the number of hotlines for citizen communication with the government both at national and provincial levels (2014: 113), however, it did not intentionally pursue the resultant outcome from the statistics generated from hotlines. In other words, if outcomes are not intentionally and strategically pursued, reporting focuses on activities and outputs both of which are lower-level orders in the results chain. On the issue of institutionalization of M & E, many of the administrative units in various departments especially at the local government level do not have the necessary human capacity, with vacancies left unfiled, with officials “acting” in those roles. The issue of “actors in the public service”, where officials act in various positions, sometimes really strategic ones for years on end, certainly has an impact on service delivery quality. Also, without the requisite authority and commitment to the roles, they are placed in, the outcomes are less than desirable. Subsequently, there does not seem to be adequate system capacity across various sectors and spheres in terms of ensuring effective monitoring. Thus, the inadequacy of systems and the extent to which these timeously alert governments of any implementation failures are still a challenge as noted in the 2014 Progress Report “there is still a challenge of coordinated monitoring and evaluation systems and following up on the result of the evaluation. The levels of satisfaction with the delivery of services still show limited improvement during the reporting period. . .” (2014: 99). The resultant effect of this ineffective monitoring besides the poor service delivery outcome is that it effectively reduced compliance activity. Where on paper there is monitoring captured in checklists, but there is minimal learning for organizations nor improvement on services delivered. While the institutionalization of administrative processes remains a challenge, as reflected above, the monitoring of government performance and accountability through mechanisms that interface legislative and administrative systems holds promise. The parliamentary system of standing committees seems to have been strengthened with parliamentarians having appropriately monitored service lapses and invited the leadership of those governmental agencies and departments to come to the parliament and account; examples include state electricity parastatal (ESKOM) and South African Airways (SAA). This oversight role of committees such as the Standing Committees of Public Accounts (SCOPA) increases accountability and further institutionalizes monitoring of government performance; however, it needs to be more robust (e.g. strengthened in other spheres, especially in local municipalities) and timely in execution such that service delivery failures and/or system damages are contained and where possible reversed. In the case of the two agencies identified above, it was a case of too little too late. On the issue of monitoring frontline services, the South African government recognizes that monitoring of government performance should be a co-owned activity with local communities; hence, it sought to improve the effectiveness of government outreach systems and mechanisms through the use of multi-stakeholder imbizos utilized by 78% of the country’s provinces (Progress Report 2014) and also

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uses mechanisms like the ward committees to monitor frontline services. These mechanisms encourage participatory monitoring by communities and could be strengthened. Thus, there is a case to be made for participatory and citizen-led monitoring. The 2010 Progress Report notes that “The legislative framework protecting shareholder rights in South Africa is adequate in many respects. There is, however, a palpable lack of shareholder activism and monitoring. . .”. A combination of government lead and civil society lead approach to monitoring government performance would be most appropriate, i.e. a top-down and bottom-up approach. Lastly, in monitoring government performance, the media plays a valuable role. The South African media space is pluralistic with many media houses, and agencies have given the necessary space to report as they see fit, without (or perhaps limited in instances) government interference. To date, some alternative news sources and some privately owned have opened up these media channels, thereby providing citizens with options to get the relevant news. This issue of media plurality is and remains a strong pillar of the South African democratic state as media including state-owned broadcasters strive to maintain their independence. During the period of review, there have been instances where the role of the media was challenged, especially the public broadcaster, e.g. the case of the SABC 8—a group of journalists employed by the broadcaster, who took the corporation to court challenging the decision to censor news items that portrayed the ruling party in a bad light and highlighted frustrations of communities who were dissatisfied with the quality of services they received from the local municipalities. This matter was resolved in the labour court with a ruling in favour of the aggrieved journalists, with the SABC being ordered to immediately reinstate the full-time employees amongst them (BBC News, 2016). To date, the media space has adequately covered news of national importance such as “fees must fall” from all angles. Thus, the media has been an active player in the space of monitoring government performance and the government should be commended in turn for having provided the environment for the media to do their work without favour and independently.

9 Corruption in the Public Service and State Capture “South Africa has developed an advanced framework of law, strategy and institutions with a mandate to combat corruption. The country has enacted various pieces of legislation for preventing and combating corrupt practices. It has also adopted various international audit standards, signed protocols against corruption and ratified various international conventions on preventing and combating corruption” (CRR, 2007). However, despite the frameworks, all progress reports acknowledge the serious nature of the South African nation. The 2009 report notes that “in order to intensify the fight against corruption, support was provided to municipalities in the development of fraud prevention plans and anti-corruption strategies. These plans have a specific focus on the risk areas identified, namely employment practices,

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procurement procedures, financial controls and subsidized houses”. Thus, as far back as 2009, the government was aware of the risks and declared its intentions to address the ills. In the 2014 Progress Report, this position was further highlighted as this issue of corruption had become more prominent in the national discourse. Further, government appraisal indicated a need to focus more attention on the implementation of the framework and provide the necessary capacity to strengthen the fight against corruption (APRM Progress Report, 2009). The corruption issue still poses one of the greatest risks (if not the greatest) to the South African State. The State of Capture report, a report of the Public Protector Office which was released in October 2016, put this issue squarely at the centre of the national agenda and discourse. A commission of inquiry usually referred to as the Zondo Commission (named after its chairperson, Deputy Chief Justice Raymond Zondo) was charged with investigating the allegations of State Capture in 2018, and its work is still ongoing in October 2021, after some extensions. Various indices from Transparency International (2020) such as the global corruption barometer and the corruption index suggest that this is an area of concern in South Africa. Thus, the task of unearthing the allegations of State Capture and the extent to which it may have impacted on government is still unfolding. The successful completion of that work by the Zondo Commission is critical for South Africa to set itself on a path of renewed governance. Nevertheless, it is important to note that there seems to be political will in terms of giving the commission the space and the resources to do its work independently, and this signals a commitment to address this matter head-on and highlight the principle of accountability in the public sector. In the recent past, while the issue of state capture is being dealt with by the commission, more allegations of corruption have been reported in the public sector with senior officials and politicians having been implicated in the so-called PPE (Personal and Protective Equipment) scandals related to the COVID pandemic in 2020. According to the Parliamentary Monitoring Group (2021), the Special Investigating Unit is investigating over 5 billion questionable tenders in over 600 cases. Some of these political and administrative officers allegedly involved in doing business with the state directly or indirectly pose serious risks and have been suspended, resigned or are currently being investigated by the various crime-fighting organizations in the country. Regrettably, whistleblowers in the corruption cases such as the PPE scandals remain at risk and died in instances. While President Cyril Ramaphosa is vocal and keen on fighting corrupt activities, the fact that the up-tick in these alleged corrupt activities (like the PPE scandals) even in an era of promised clean governance suggests that it is almost “business as usual” on the corruption front, and this is very concerning. The most recent corruption perception index from Transparency International (2020) seems a marginal movement, with South Africa moving up by just one point under President Ramaphosa. The Daily Maverick (2021) noted that an “analysis of corruption shows that President Cyril Ramaphosa has failed to disrupt it sufficiently to make a dent in its trajectory” with over R1billion lost in corruption to COVID-19 tender opportunities.

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Capacity Building, Training and Professionalization of the Public Service

All three progress reports acknowledge the role that appropriately capacitated systems and personnel could and do play in ensuring effective, efficient and accountable governance. According to the CRR (2007), “the civil service experiences a serious skills challenge. A legacy of the apartheid regime. This phenomenon is exacerbated by disparities in working conditions between the public and private sectors which leads the latter to attract the best-skilled employees at the expense of the former”. In the 2011 Progress Report, reference is not made to how the weak capacity of the state affects effective, efficient and accountable service delivery. The report further notes “Government in partnership with civil society continues to work tirelessly to ensure that the South African society is inclusive and its diverse nature is well represented in all nation-building initiatives. As a result, forums and mechanisms for social change have been established and strengthened. . .”. An example is the Public Service Coordinating Bargaining Council (PSCBC) which “plays a central role in facilitating issues related to conditions of service of public servants”. It has amongst others facilitated an agreement on the retention strategy for professionals in the public service, referred to as the Occupation Specific Dispensation (OSD). However, while the prevailing conditions as salaries and wages have been addressed, it has not necessarily amounted to improved service delivery. The 2009 report then highlighted some strategies to help including the fact that “skills and competency-based assessments for municipal managers and senior managers are being undertaken to ensure that these officials have the necessary skills and expertise. With the necessary skills and expertise, the officials will be in a position to provide improved services to the people”. In the subsequent years, the government devised a plan for the secondment of required skills at various municipalities with improved access to sanitation and water reticulation networks. This improved technical capacity marginally, but as some of this personnel served out their contracts, cracks again began to show. Thus, the progress on the above strategies was limited as the 2014 Progress Report again acknowledged that the country continues to be confronted with an acute lack of capacity, especially financial expertise to manage social programmes, public spending and facilitation of the delivery of services at provincial, district and local levels. The South African government continues to work towards improving public service training through the National School of Government, which runs several programmes across the public sector, which are aimed at improving the service quality. In addition to these training programmes, departments also often seek and utilize in-house programmes that could add value to their services. Despite all of these, the critical question is the extent to which these training programmes do impact positively, assuming that all the other environmental factors including resources are in place. Linked to training is the issue of professionalism. This

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deals with the extent to which public service officers demonstrate professionalism and are being held to the desired standard. The challenge has been that translating professionalism within the domain of public administration has been largely theoretical. This is so because, unlike most professions that have standards (which may include norms and values) and hold people to the standards, the public administration profession does not have similar; e.g., medical doctors are held to their standards or they lose their rights to practice. While there are debates about professionalism in the public sector even in 2021, it is not clear what real steps are being taken to hold people accountable, e.g. are people barred from holding similar positions in the public sector based on their poor professional track records? Is there a link between performance management, accountability and sustained employment in the public sector? And why not? In the past 20 years, the running party has utilized what they term “deployment” strategies that have not served the nation well in many instances; poorly qualified party loyalists were placed in key positions and they failed woefully. To this end, in 2021, the President of the Republic, Cyril Ramaphosa, has publicly stated that they will revise their strategy and deploy people with the right skills and qualifications in various positions, signally the need to put capacity before politics. This if well implemented will hopefully step up competence and accountability of public service across spheres.

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Accountability

The South African society is engaged, a culture that developed from the apartheid struggle years. This is seen from the multiplicity of views at various forums including formal and informal channels as communities are not shy to call the government out for non-performance. However, it will appear these formal channels have not always been effective in dealing with matters of accountability. Subsequently, local communities have sought other ways such as violent protests as a means to make their voices heard and hold officials accountable. The use of protests and demonstrations as vehicles accountable is acceptable and a right enshrined and protected by the constitution; however, its violent nature in many instances is worrisome, as assets of the state (owed by the same people protesting) are damaged and sometimes private shops looted and property damaged. To this end, improving the efficacy of ward committees and similar structures of engagement is critical for improving accountability. The use of community meetings and Imbizo’s continue to prove effective given its indigenous nature, making it accessible to local communities. Additionally, the active engagement of civil society and its access to funding to ensure that they amplify the voices of the people and hold government and office bearers accountable should be safeguarded. While the government has sought some funding opportunities for a civil society like the lottery fund, this needs to be strengthened in favour of localized, small and communitybased NGOs, particularly those in rural centres. The issue of holding politicians

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personally responsible remains challenging due to amongst others, a proportional representative political system—which in many ways is protectionist of individuals under a broader party banner and to the detriment of communities and in upholding the principle of accountability. Also, to increase accountability at more strategic levels, there have been attempts to link it with performance. It is understood that performance agreements are signed with various leaders; e.g., all ministers sign with the president, and the president also signs intergovernmental delivery protocols with all provincial premiers. This signals an acknowledgement of the importance of accountability. The removal of the Health Minister in 2021 following his alleged involvement in the COVID-19-related corruption scandal could very well be that this is being implemented and accountability is sought. However, that will not be enough, and government needs to do better concerning consequence management to rebuild trust in society by ensuring that criminal charges of corruption and abuse of office in high places and across government are vigorously pursued. If people are not held accountable, it erodes public trust and entrenches a trust deficit as government officials are seen as laws onto themselves, especially in municipalities, which are the closes level of government and are perceived to be ailing and failing.

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Recommendations

The following recommendations are made to strengthen this sub-pillar: • Professionalization of the public service through accreditation (e.g. 5-year professional accreditation for officials, renewable based on good record or not renewed and blacklisted for public service employment due to poor record). • Institutionalized lifestyle audits for senior managers to curb corruption. • Strengthening corruption fighting strategies including effective protection for whistleblowers. • Mentoring and coaching of employees across spheres especially at municipal levels to develop appropriate capacity. • Need for improved NGO funding to hold continue to ensure that the government is held accountable as they monitor services. • Continued oversight of government performance by media. • Institutionalization of co-owed, co-led M & E (by government and communities). • Strengthen performance management mechanisms and systems. • Improving current accountability mechanisms, e.g. ward committees. • Improving the capacity of the state—investment in training in specific areas, e.g. M & E.

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Conclusion

This chapter reviewed various progress reports and identified key issues that impact the attainment or non-attainment of the APRM objective 5 (effective, effective and accountable public office bearers and public service) in the democracy and political governance theme. The chapters amongst others identified and presented two key legislative instruments critical for the attainment of an effective, efficient and accountable government and argued that while these and other similar are in place, and this is commendable, on the other side of the coin, the state has struggled to translate these through effective implementation. Thus, there is a gap between the intended and the actual delivery of state machinery and agencies. An attempt was made to tease out the issues contained in the various progress report, and the following six issues were then identified and engaged as the main thrust to be pursued if objective 5 is to be achieved. These six main issues were as following: • • • • • •

Regulatory framework for service delivery. Service delivery. Monitoring government performance. Corruption in the public service and state capture. Capacity building, training and professionalization of the public service. Accountability.

Finally, recommendations were made to strengthen the progress made towards the attainment of the APRM objective number 5, under democracy and political governance.

References Ackerman, J. M. (2005). Social accountability in the public sector: A conceptual discussion. World Bank. Achen, C., & Bartels, L. (2002). Blind retrospection: Electoral responses to droughts, flu, and shark attacks. Presented at the Annual Meeting of the American Political Science Association, Boston, MA. BBC News. (2016). South Africa sacked reporters win SABC censorship case. Retrieved April 20, 2021, from http://www.bbc.com/news/world-africa-36867985 Blind, P. K. (2011). Accountability in public service delivery: A multidisciplinary review of the concept. Prepared for the expert group meeting engaging citizens to enhance public sector accountability and prevent corruption in the delivery of public services. Palgrave Macmillan: United States. Bovens, M. (2010). Public accountability. In E. Ferlie, E. Laurence, J. Lynn, & C. Pollitt (Eds.), The Oxford handbook of public management. Oxford University Press. Country Review Report. (2007). Retrieved April 2, 2021, from http://www.aprmtoolkit.saiia.org. za/ Dowdle, M. W. (2006). Public accountability. Designs and dilemmas, and experience. Cambridge University Press.

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Daily Maverick. (2021). With only 27 South African municipalities getting a clean audit outcome, service delivery remains a pipe dream. Retrieved October 8, 2021, from http://www. dailymaverick.co.za/opinionista/2021-08-29-with-only-27-south-african-municipalities-get ting-a-clean-audit-outcome-service-delivery-remains-a-pipe-dream/ First Report. (2009). First report on the implementation of South Africa’s APRM programme of Action. Retrieved April 2, 2021, from http://www.aprmtoolkit.saiia.org.za/ Frink, D. D., & Klimoski, R. J. (2004). Advancing accountability theory and practice: Introduction to the human resource management. Human Resource Management Review, 14(1), 1–17. Healy, A., & Malhotra, N. (2010). Random events, economic losses, and retrospective voting: Implications for democratic competence. Quarterly Journal of Political Science, 5, 193–208. Ile, I., & Makiva, M. (2017). Monitoring oversight and accountability for sector-based transformation in South Africa – A petroleum downstream perspective. African Journal of Public Affairs, 9(6). Ile, I., Eresia-Eke, C., & Allen-Ile, C. (2019). Monitoring and evaluation of policies, programmes and projects (2nd ed.). Van Schaik. Kaufmann, D., Kraay, A., & Zoido-Lobatón, P., (1999). Aggregating governance indicators. Policy Research Working Paper No. 2195. Washington, DC: World Bank publications. Lenz, G. (2012). Follow the leader? How voters respond to politicians’ policies and performance. Chicago University Press. Lupia, A., & McCubbins, D. (1998). The democratic dilemma: Can citizens learn hat they need to know? Cambridge University Press. Mosher, F. C. (1979). The quest for accountability in American government. Westview Press. Parliamentary Monitoring Group. (2021). Retrieved April 21, 2021, from http://pmg.org.za/ committee-meeting/30873/ Second Report. (2011). Second report of the implementation of South Africa’s APRM programme of Action. Retrieved April 2, 2021, from http://www.aprmtoolkit.saiia.org.za/ South Africa Department of Public Service and Administration. (2003). Batho Pele handbook – A service delivery improvement guide. DPSA. Retrieved from www.dpsa.gov.za/dpsa2/ documents/gics/bphb/BathoPeleHandbook.pdf Sowetan. (2021). http://mg.za/article/2018-03-16-00-another-child-des-in-a-pit-latrine/ Third Report. (2014). Third report the implementation of South Africa’s APRM programme of Action. Retrieved April 2, 2021, from http://www.aprmtoolkit.saiia.org.za/ Transparency International. (2020). Retrieved April 21, 2021, from http://www.transparency.org/ en/cpi/2020

Evaluating the Commitment of South Africa to the Principles of Separation of Powers Evans Sakyi Boadu

1 Introduction Historically, the concentration of unchecked power in the hands of a single individual or group of people has mostly resulted in suppression and oppression of other peoples’ rights. In constitutional democracies, the notion of division of powers is employed to deter the misuse of power within and among the arms of government and to ensure that there are checks and balancing of powers. The concept further ensures that everyone has equal access to civil liberties. Thus, separation of powers is a fundamental philosophy that stimulates democracy in both consolidated and emerging democracies such as South Africa. Separation of powers coupled with checks and balances is vital in democracies since they prevent the arms of governments from manipulating their constitutional authority, thereby curbing any dictatorial tendencies (Klug, 2019). The notion of “separation of power” has multiple dimensions, and there are extensive and wide-ranging academic studies done on the subject matter concerning the concepts, theories, methods, and practices embedded in the idea (Labuschagne, 2004; Sang, 2013; Klug, 2019). Thus, much has been said about the assumptions underpinning the concept, and this chapter took a look at South Africa and the country’s commitment to the principles. While the classical dimension tends to focus on safeguarding the citizenry against the tyranny of the state (Bylund & Packard, 2021), the contemporary notion is entrenched in promoting and ensuring good governance, accountability, transparency, and rule of law (Khare, 2017; Munzhedzi, 2017). Nonetheless, both tend to emphasize the same anti-authoritarianism

E. S. Boadu (*) Institute for Post-School Studies (IPSS) and School of Public Health (SoPH), University of the Western Cape, Cape Town, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_3

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predispositions which seek to prevent unlimited administrative, legislative, and judicial powers in a single individual or institution of the state. Thus, separation of power in a more general sense is the power partition of the three arms of government (Kalu, 2018). There are varied connotations assigned to the “power” in the “separation of power,” which is a link to the functional division between the arms of government in a constitutional state despite the ambiguities underpinning the partitioning. Separation of power is a requisite condition for rule of law “Rechtsstaat” or “Etat de Droit” in a thriving constitutional democracy such as South Africa (Khare, 2017; Rehman & Khan, 2021). Besides, the present governance structure in South Africa and the constitutional guarantee to the principle of division of powers are well-suited for this type of inquiry. It will be interesting to know the extent to which each organ of government has encouraged and facilitated intergovernmental relations and provided suitable mechanisms and procedures for resolving disputes at all levels and working to ensure that all have equal rights. The next sections examined the extent to which the principles have been upheld within the governance mechanisms to ensure the independence of the judiciary and foster parliament autonomy and good governance in South Africa. The key questions that informed the analysis are as follow: 1. To what extent has the 1996 Constitution guaranteed a functional division between the branches of government? 2. To what degree is the independence of the legislature effective? 3. To what extent is the judiciary independent?

2 Emerging Insights on Constitutional Democracy and Separation of Power South Africa inherited the country’s third constitution (the 1983 Constitution) postapartheid and the quest to transition into a constitutional democracy ushered in the negotiation between 1994 and 1996 for a new constitution (The Constitution of the Republic of South Africa, 1996) which gave the country the first constitutional democracy. The Constitution of RSA 108 of 1996 was promulgated on February 4, 1996, which provided for a three-tier system of government-national, provincial, and local levels. It further created a clear distinction between the functions of the legislature, executive, and judicial branches of government. The Constitution devoted three chapters to the three organs of government with several clauses which further provide a clear division between the state institutions and other auxiliary agencies in the administration of the country. Besides, the concept of separation of powers is rooted in the assumption that no individual, group, or institution should become powerful to prevent abuse of power and safeguard the freedom of citizens. The country has made a great stride in championing the letter and spirit of the constitution by upholding rule of law with great emphasis on judicial independence

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and effective legislature. A long-lasting tale is that political power in the hands of a single person or a few individuals has the potential to suppress those with limited power, authority, and voice (Devenish, 2003; Mojapelo, 2013; Masinde, 2017). Thus, placing political limitations or checks and balances between and among the three organs of government continues to be a crucial practice in consolidated and emerging democracies such as South Africa. Besides, the principle of separation of power is entrenched in rule of law which is one of the cardinal tenets of constitutional democracies (Khare, 2017; Aung, 2021; Rehman & Khan, 2021). The 1996 constitution devoted keen chapters to the arms of government with specific articles that clearly state the functions and composition of the three branches of government. Section 42 of the constitution delineated the composition of the South African parliament to consist of a National Assembly (NA) and a National Council of Provinces (NCOP). Both perform their legislative roles under the 1996 Constitution of the Republic of South Africa. Besides, the constitution also gives credence to the executive president as the head of state and leader of the national executive and further sheds light on the powers and the authority of the president. Section 85 stipulated that the authority of the executive is vested in the hands of the president. Further, the constitution granted judicial authority to the courts which consist of the constitutional court, supreme court of appeal, high courts, magistrates’ courts, and other courts established by an act of parliament as stated in section 165. The subsections of section 85 of the constitution further attested to the independence of the judiciary and granted the autonomy and power the courts wield and the need for other organs of state to guard the sovereignty of the judiciary as subsection (4) states that “organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility, and effectiveness of the courts.” Consequently, the independence of the judiciary is not in doubt as it is explicitly stipulated in the 1996 constitution. Figure 1 depicts the three arms of government as stated by the 1996 Constitution and with their core mandates. While these state organs are constitutionally separated, however, in practice their administrative functions tend to interlink with one another. Nonetheless, the principle is rooted in the strict partition of the functions of the arms of government (Devenish, 2003; Sang, 2013; Masinde, 2017; Pejić, 2019; Aung, 2021). Their responsibilities are allotted in such a way that each of them can check the others through another principle, called “check and balance” (Munzhedzi, 2017, 2021; Sang, 2013). In South Africa, having conquered the apartheid regime, a new constitution (1996 Constitution) was negotiated which gave the country a constitutional democracy tied to the principle of separation of power. Besides, the constitution devoted chapters four, five, and eight to the three organs of government, the legislature (parliament), executive (president), and courts and administration of justice (judiciary) (see Fig. 1) to prevent individual, groups of people, or a single institution to becoming so powerful in the functional, structural, and procedural running of the country. Since then, the country has made significant strides in defending the letter and spirit of the constitution by upholding the bill of rights, rule of law, and supremacy of the

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The 1996 Constuon of South Africa

Legislature (Parliament) Naonal Assembly; and Naonal Council of Provinces. (Chapter 4)

Execuve (President) (Chapter five)

Judiciary (Court) (Chapter 8)

Pass and amend legislations.

Put the legislations into action.

Interprets the laws into precedents.

Fig. 1 The South African Constitution and three arms of government. Source: Adapted from the Republic of South Africa Constitution, 1996

constitution coupled with a functioning executive, independent judiciary, and effective parliament (Labuschagne, 2004). The concept of separation of powers as entrenched in the 1996 Constitution has proved to be an effective mechanism for transparency, good governance, rule of law, and liberty of the people (Devenish, 2003; Mojapelo, 2013; Vilakazi & Adetiba, 2020). Besides, the delegation of powers to state institutions and other statutory bodies such as the Judicial Service Commission (JSC) is in tune with the idea of power distribution between and among the three branches of government to prevent unnecessary abuse of power and promote accountability (Devenish, 2003; Mubangizi & Siyo, 2015; Masinde, 2017; Kalu, 2018; Pejić, 2019). The independence of the judiciary in matters of political, social, and economic adjudication is not in doubt judging from recent judicial rulings in South Africa. Although the previous African Peer Review Mechanism (APRM) country reports, 2008, 2009, and 2013, touched on several issues regarding democracy and political governance in South Africa, separation of powers was not sufficiently scrutinized.

3 Conceptualization of the Principle of Separation of Power and Check and Balance 3.1

Separation of Power

The notion of separation of power is a prerequisite for every constitutional democracy. The narrative is that countries that adhere to the principle of separation of power tend to protect and safeguard the rights, liberties, and freedoms of people. The

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freedom and liberty of the citizenry are entrenched in the constitution, and the courts are guaranteed their independence through the constitution to protect them. Thus, the doctrine by its operation is rooted in the assumption that individual rights are better protected when the state functions through three arms with each serving as a check on the other to prevent dictatorship, tyranny, oppression, and autocratic tendencies in the state. This could lead to an efficient political–administrative system where transparency, accountability, and citizen participation are the cornerstones of the state. The norm underpinning the principle has long been part of ancient philosophies. Socrates and Plato highlighted the essence of the concept in their writings although the terminology was not apparent. Plato perceived the state as a social institution that operated within communal patterns divided into three: the Guardians (philosopherking), the auxiliaries (soldier) and commoners (artisans, farmers etc) where the philosopher-king rules the city; the auxiliaries guard the city; and the farmers, artisans inter alia are the producers (Bertrand, 1981: 125). While the doctrine was fairly uttered during the Socratic and Platonic eras, but the nomenclature was keenly articulated by a French Enlightenment political philosopher called Baron De Montesquieu. Montesquieu argued that the powers vested in every state should be partitioned into three with distinct administrative organs operating separately without one overriding the functions and duties of the other. Montesquieu elaborated on the significance of the concept in constitutional systems. To him, this term describes the division of political power into the executive, the legislative, and the judiciary. Montesquieu’s philosophy was based on the British constitutional system where the philosopher opined that there should be a clear separation of power among the monarch, parliament, and the courts of law. The core assumption underpinning the notion was the distribution of political powers within and among the three state institutions (executive, judiciary, and legislature) to avoid coercion, oppression, and suppression by the state and to ensure political freedom and liberty. Nonetheless, the present operation between these three arms of government permits some level of cooperation and fusion of powers which contradicts the core value of the doctrine as enunciated by Montesquieu. Conventionally, by this doctrine, the legislature is only mandated with the responsibility to make laws without any interference, the executive implements and enforces the laws enacted by the legislature in the state, while the judiciary has the exclusive reserve to interpret the laws and punish offenders in the state. However, in presidential systems of government, there is an apparent dominance of the executive arm over the legislature and judiciary, and this has the potential for executive tyranny and authoritarianism (Bylund & Packard, 2021). Thus, strict adherence to the principle of separation of power guarantees and safeguards the rights, liberty, and freedom of individuals in the state. The freedom and liberty of individuals are safely protected since the constitution has these entrenched rights and the courts are independent to protect them.

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Check and Balance

The principle of checks and balances is fundamental in tripartite governments, such as that of South Africa, where the state powers are separated among the three branches of government: legislature, executive, and judiciary. In constitutional governments, the doctrine of separation of power is tied to the principle of “check and balances’” which allows each branch of the government to serve as a “check” on the other to prevent one from becoming too powerful. James Madison in the Federalist Papers opined that “If men were angels, no government would be necessary,” and thus, argued for the need to be checks and balances such that those who are the ‘Guardians’ as perceived by Montesquieu governed the auxiliaries and producers but the Guardians must have a system in place to control itself. Thus, most constitutional governments including South Africa have several checks and balances embedded into the constitution. The branches of government are enjoined to function per the constitutional provisions outlined for the partition. Conventionally, the legislature is tasked to enact laws and control the purse of the executive, the executive implements and enforces the law and formulates other national policies to be implemented under the law, and the judiciary interprets the law and administers justice to ensure that the people’s rights, freedom, and liberty are protected (Labuschagne, 2004). However, the principle of checks and balances goes beyond the conventional understanding of the concept. While the boundaries may seem watertight in theory, they are porous in practice (Labuschagne, 2004; Bylund & Packard, 2021). The purpose of the principle is to diffuse any unduly concentrated power in one branch to prevent arbitrary government (Cranenburgh, 2009; Khare, 2017) and promote good governance, accountability, and transparency (Persson et al., 1997; Cranenburgh, 2009; Vyas-Doorgapersad & Aktan, 2017). The contemporary connotations of both concepts are rooted in values such as transparency, accountability, and liberty of citizens in the execution of the laws enacted by the state. Checks and balances are entrenched in the constitution and demonstrated by the arms of government in the performance of their duties to ensure good governance. Moreover, the parliament has oversight responsibilities over the executive and judiciary despite some power limitations either by procedural or substantive laws (National Treasury Legislative Oversight through Annual Reports, 2005).

4 Separation of Powers and Checks and Balances in Action 4.1

Good Governance

The principle of separation of power and checks and balances has explicitly impetus for governance in democratic countries. These principles are core in democracies since they encourage state institutions to produce results to the satisfaction of the

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society by utilizing the public resources entrusted to them by the people. The proponents of both principles have confidence in a governance system that shares power between the three branches of government-legislative, executive, and judicial with in-built checks and controls on their powers. Besides, the concept of good governance in the context of separation of powers also covers the adherence to other ideas such as the rule of law, citizens’ participation, transparency, government responsiveness, consensus building, equity and inclusivity, effectiveness and efficiency and accountability (UNESCAP, 2021, p. 3). Moreover, both concepts in part hold that government institutions, agencies, and departments who are entrusted with public affairs must manage that in genuineness to ensure that the public resources are utilized efficiently, the rights and liberties of the citizens are protected, and the rule of law is upheld at all time (Cranenburgh, 2009; Khare, 2017). Despite the traditional rationale embedded in both principles in curbing the threat of arbitrary government, practically, the 1996 constitution of South Africa has several entrenched clauses as well as vertical and horizontal institutions and agencies inter alia with authorities to ensure strict adherence to the tenets of the principle of separation of power and checks and balances. The term limits for the executive, the veto powers of the executive over the legislature, the authority of the judiciary to declare legislation null and void, and the media “fourth estate” power to hold the branches of government accountable to the citizenry are all rooted in the principle of separation of powers and by extension good governance. Despite the executive having the dominant power, it is also guided by the constitution to follow a code of ethics delineated by the legislature per Section 96(1). The 1996 Constitution of South Africa coupled with other national legislations informed the national, provincial, and local institutional arrangement, oversights, and accountable mechanisms as stated in section 40(1) of the constitution that “. . .government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.” The connexion among the three branches of government is explicitly stated per section 40 of the 1996 constitution as distinctive, interdependent, and interrelated. Therefore, the governing and administrative mechanisms in South Africa are to execute their duties per the fundamental principle embedded in cooperative government which is deeply rooted in the concept of separation and balancing of powers. The Constitution encourages mutual and friendly relationships between and among the three spheres of government as stated in section 41(1)(g) that the three branches are to “co-operate with one another in mutual trust and good faith by fostering friendly relations; assisting and supporting one another, and informing one another off and consulting one another on matters of common interest.” Nonetheless, the same section stipulates what the organs of government need to do when there is an intergovernmental dispute. The subsection further tasks the organs to settle disputes using appropriate mechanisms and procedures that can remedy the impasse before going to court to request the resolution of a dispute. The court is permitted to refer a disputed matter back to the organ involved if not satisfied. The Constitution stipulated for an act of parliament to establish structures inter alia to encourage and facilitate intergovernmental relations and provide suitable

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mechanisms and procedures to resolve national, providential, and local level intergovernmental disputes. The passage of the Intergovernmental Relations Framework (IRF) Act of 2005 establishes a framework to facilitate intergovernmental relations and the settlement of disputes. The preamble of the aforementioned act reads as follows: “To establish a framework for the national government, provincial governments and local governments to promote and facilitate intergovernmental relations; to provide for mechanisms and procedures to facilitate the settlement of intergovernmental disputes, and to provide for matters connected therewith.” Besides, the promulgation of the IRF Act, 2005 further provided a suitable mechanism for collaboration and accountability as well as other procedures to resolve national, provincial, and local level governance issues.

4.2

Accountability

The core justification for every democracy is political accountability on the part of public officials (Persson et al., 1997; Agyepong & Adjei, 2008; Fabbrini, 2021). In constitutional democracies such as South Africa, those who have been given the political power to govern with the expectation that the authority given is used to efficiently deliver public goods and services. These elected public officials are held accountable to the office given (Chang et al., 2010), and the three branches of government are no exception. Thus, the governed expects those who govern to do so per the constitutional provision(s). Accountability mechanisms could either be vertical or horizontal where the former concerns itself with using democratic procedures such as elections to restrain the executive from acting out of its political ambit (Ping & Wang, 2022). The latter horizontal accountability is where state institutions such as the legislature, judiciary, the ombudsman, and others check the powers of the executive branch of government (Ping & Wang, 2022). The executive also has the same responsibility to serve as a horizontal accountable institution to constrain the powers of the legislature and other state institutions. Both mechanisms are crucial in constitutional democracies for political control and good governance since weakness in each could lead to the abuse of power (Chang et al., 2010; Ping & Wang, 2022). For instance, the constitution made provision for the constitutional court to declare an act of parliament or the conduct of the president unconstitutional. As stated in Section 167 (5); “The Constitutional Court makes the final decision whether an act of parliament, a provincial act or conduct of the president is constitutional and must confirm any order of invalidity made by the Supreme Court of Appeal, High Court, or a court of similar status before that order has any force.” This serves as a check on the executive and legislative branches of government in South Africa from acting contrary to the constitutional provision. Nonetheless, the executive president in consultation with JSC nominates judges for all courts in South Africa pending approval from the legislature. A parliamentary committee vets all the judges of the various courts in South Africa after their appointment by the president in consultation with the JSC.

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In addition, the 1996 Constitution has established several horizontal accountable institutions including the Public Protector, the South African Human Rights Commission, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, Auditor-General, Electoral Commission, and JSC inter alia that holds the executive, legislature, and judiciary accountable. As alluded to earlier, the executive powers of the country are vested in the hands of the president and the president has the mandate to dissolve the NA. This is an executive prerogative that put some level of constraints on the powers of the legislative body. Besides, legislative bills passed by the National Council can be checked by the executive through the presidential assent which is the sole prerogative of the executive president to append his or her signature to a bill to become a law. The President has the power to refer back legislations to the NA for reassessment and deliberation. The constitution talks about the “Assent to Bills” which is the prerequisite of the executive president to sign a bill into law after it has been passed by the legislature (see section 79 (1) of the 1996 Constitution). Again, the Constitutional Court could also declare the bill passed by parliament as null and void or refer it back to the legislature for further deliberation. These executive and judicial prerogatives serve as a check on the legislative branch of government.

4.3

Legislative Oversights Responsibilities and Transparency

The legislative powers and oversight responsibilities in South Africa are vested in the legislature (National Assembly (NA) and National Council of Provinces (NCOP)) besides its classical responsibility as a lawmaking and amending body. The Constitution affirmed the legislative powers over the executive; Members of the Cabinet and Deputy Ministers appointed by the president in sections 92 and 93. Section 92 (2–3) confirmed that: “Members of the Cabinet are accountable collectively and individually to parliament for the exercise of their powers and the performance of their functions. (3) Members of the Cabinet must- (a) act per the Constitution, and (6) provide Parliament with full and regular reports concerning matters under their control. And Section 93 (2) outlined parliament’s control over Deputy Ministers appointed by the president (section 91) read: “Deputy Ministers appointed in terms of subsection (1) (6) are accountable to parliament for the exercise of their powers and the performance of their functions”. Coupled with their traditional role, the legislative branch of government in most constitutional democracies such as South Africa is mandated to serve as the ombudsman institution. Moreover, sections 59 and 69 provide the NA and NCOP with the power to obtain further and better particulars in the performance of their oversight responsibilities. The NA or any other committees set up by the NA has the power to request further information or evidence in discharging their oversight duties as stated in sections 56 and 69 (a-d):

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Again, the parliament has several oversight mechanisms and approaches to hold the executive branch of government accountable for its actions or lack thereof (Fagbadebo & Ru, 2019). In addition, the NA oversight power on the executive branch of government is also expressed in other national strategies such as the National Treasury Guideline for Legislative Oversight Annual Report (2005), as stated in section 55(2) of the report opined that the NA: . . .must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it; and to maintain oversight of the exercise by the national executive authority, including the implementation of legislation; and any organ of the state.

Similarly, the nine provincial legislatures are provided with parallel oversight mandates as that of the NA in section 114(2) which reads: “(2) A provincial legislature must provide for mechanisms- (a) to ensure that all provincial executive organs of state in the province are accountable to it; and (b) to maintain oversight of-(i) the exercise of provincial executive authority in the province, including the implementation of legislation; and (ii) any provincial organ of state”. This provincial legislative oversight power is only over the provincial executive branches of the state and not national public institutions. The NA is again mandated with the power of “scrutinizing and overseeing executive action” as expressly stated in section 42(3) of the constitution below. The NA serves as the ombudsman, overseeing the work of the government departments, national ministries and institutions, watchdogging departmental budgets, and considering international and regional treaties and agreements. The NA is elected to represent the people and to ensure government by the people under the Constitution. It does thi1,27s by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action (section 43 (3)).

Also, coupled with the conventional role, the NA has other several committees that play a critical role in the democratic processes such as the drafting and consideration of bills, public policies, and fiscal policy of the country. The legislative committees tend to also involve the citizenry in the processes and activities of parliament for the benefit of all. The public can petition the legislature regarding any public issues or fiscal policy challenges. The NA oversight duties could be over national and provincial institutions and other public officials as stated in the Legislative Oversight Support, 2012. The 1996 Constitution provided for a National Revenue Fund (NRF) of which funds could be used by the executive to implement government developmental projects; however, budgetary allocation for such projects requires careful consideration and scrutiny by Parliament as stated in section 213 (1 and 2) below:

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There is a National Revenue Fund into which all money received by the national government must be paid, except money reasonably excluded by an Act of Parliament (2) Money may be withdrawn from the National Revenue Fund only- (a) in terms of an appropriation by an Act of Parliament; or (b) as a direct charge against the National Revenue

Moreover, parliament has several committees including the Portfolio Committee, Select Committees, Members’ Legislative Proposals and Petitions Committees, Internal Committees, Joint Committees as well as other Ad hoc Committees that can be established by an act of parliament (Republic of South Africa, RSA, 2021). These committees have the power to subpoena heads of ministries, departments, agencies, and other government institutions to appear before them to present evidence or produce documents if necessary. For instance, the National Assembly Standing Committee on Public Accounts serves as the ombudsman over executive spending. Other heads of government departments, institutions, and ministries are regularly called upon by appropriate parliamentary committees to report and account for their expenditure after the Auditor-General’s report. Besides these parliamentary committees, the constitution established the office of the Public Protector (PP) to scrutinize and investigate public officials about administrative and financial misdeeds in all spheres of government. The PP has the power to take appropriate action based on its reports after an investigation into any public affairs. Section 182 (1) states that: The Public Protector has the power, as regulated by national legislation-(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; (b) to report on that conduct; and (c) to take appropriate remedial action.

The PP has the constitutional mandate to investigate corrupt public officials and submit its report to an appropriate state institution for further actions to be taken; however, it cannot scrutinize the decisions of the courts (see section 182 (3)). In South Africa, the legislature and other statutory bodies have several oversight mechanisms to ensure that public officials in all spheres of government are accountable and transparent in their affairs with the citizens. Besides, other legislative acts such as the Money Bills Amendment Procedure and Related Matters Act No. 9 of 2009 which established the Parliamentary Budget Office also permit the legislature to augment its oversight responsibilities. For instance, section 15(1) of the immediately mentioned act reads: . . . hereby established a Parliamentary Budget Office headed by a Director, the main objective of which is to provide independent, objective and professional advice and analysis to Parliament on matters related to the budget and other money bills.

Thus, the parliamentary budget office also serves as the overseer of the taxpayer’s money and how it is spent by the executive. There is an annual assessment and analysis of documents submitted to parliament by the executive (Pauw, 2016). Parliament has the power to hold open hearings and call government officials and experts to give evidence to a particular budget emanating from the executive. The executive entire budget for any developmental projects could be rejected by parliament through a motion of no confidence or force the government to deliberate the

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budget. However, because of the lopsided parliamentary majority in favor of the African National Congress (ANC), it is highly unlikely for a budget to be rejected or sent back for further deliberation. The NA has other oversight mechanisms to hold the executive to account through parliamentary questions and replies (RSA, Parliament, 2021). President Cyril Ramaphosa has appeared several times before the NA on plenary sitting for oral replies to questions from Members of Parliament. Ministers of various departments have been requested to answer questions in the NA through oral reply. This is another avenue to question the actions and operations of the executive. The national and provincial legislatures are required by the constitution to maintain oversight of the executive and other organs of state within their sphere. The executive is again checked by the legislature through the presentation of the State of the Nations Address (SONA) to a joint sitting of the National Assembly (NA) and the National Council of Provinces (NCOP) which is called “the Opening of Parliament” (RSA, Parliament, 2021). Section 102 of the 1996 Constitution permits members of parliament to remove the executive president from office if the former has lost confidence in the latter governing authority as stipulated in sections 89102 (2): If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

In the past two decades, over five drafted resolutions and motions of no confidence in the president were brought before the NA by the former leader of the Democratic Alliance (DA), Hon. Mmusi Maimane cited corruption, unemployment, economic crisis, and politicization of independent institutions among others as reasons (RSA, 2016). Despite the attempt by the opposition attempt to impeach the president as enshrined in section 89 of the 1996 constitution, these motions were, however, unsuccessful. This is not surprising because in many constitutional democracies in Africa, South Africa is no exception, and the legislature tends to be a rubber stamp of the executive especially when the majority of the members in the legislative chamber belong to the ruling political party. Thus, the question of parliament keeping the executive on its toes about the allocation, distribution, and spending of public resources has been a concern in South Africa because of the immediate issue described above. Parliament has the power to impeach the president and controls the national budget as depicted in Fig. 2. The national legislature has the power to pass a motion of no confidence in the executive as stated in sections 102 (2) that “if the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign. The NA has the power to remove a judge from office as specified in section 177(1, a): a judge may be removed from office only if is grossly incompetent or is guilty of gross misconduct and adopted with a supporting vote of at least two thuds of its members.” The 1996 Constitution enjoins vital state institutions to account to the NA by reporting their activities at least once a year (see section 181(5)). Moreover, there are

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Execuve President

Judiciary Court

Judges can declare legislaons unconstuonal.

Legislature Parliament

Parliament vet judges

Fig. 2 The three arms of government and checks and balances in South Africa. Source: Adapted from the Republic of South Africa Constitution, 1996

other self-checking procedures embedded in the constitution which include but are not limited to chapter 9 of the 1996 constitution that continue to guide the country toward constitutional democracy. All the branches of government are required to hold the constitution in high esteem in the performance of their duties. The failure of one branch requires the others to step in to prevent any constitutional breach and abuse of power.

4.4

Veto Power and Players

In all political systems, either unicameral, bicameral, presidential, or parliamentary, the political status quo is often altered because the branches of government tend to have some philosophical reserves rooted in power dynamics. Thus, power is often shared among these state players or institutions to curb absolute control in the administration of the country. These state actors are called “veto players” (Tsebelis, 2000). Hug and Tsebelis (2002, p. 467) aver that “veto players are actors whose agreement is necessary for a change in the legislative status quo.” The immediate subsection in this chapter shed some light on the legislative oversight powers of the executive branch of government, but the executive president has also got some power and authority (veto power) granted by the constitution to the equally checked legislature. Every democracy has a certain government arrangement that reveals and

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shapes the veto players, and South Africa is no exception. The individual or group of actors often retain and maintain their veto powers in the administration of the country. Besides, several powers are in legitimate democracies such as the legislative oversight authority, judicial authority, and the veto power which is often vested in the executive president, and South Africa is no exception. The executive president in South Africa exercises some degree of control over the legislature by vetoing bills and other fiscal policies by the NA and NCOP as well as other administrative institutions under the legislature. The presidential assent is the prerogative of the executive to append or otherwise a bill passed by the NA. All bill passed by the NCOP are to be sanctioned by NA. And if the bill passed in the NA is without amendment, such a bill needs to be submitted to the president for assent as stated in section 76 (2-c) of the 1996 constitution that: “If the Assembly passes an amended bill, the amended bill must be referred to the Council, and if the Council passes the amended bill, it must be submitted to the president for assent.” Thus, in South Africa, the president has the power to veto a bill passed by the legislature. Again using the veto power, the president can refer back a bill to parliament for further deliberation and reconsideration. It is also within the ambit of the NA to refer a bill that has been rejected by the president to the Mediation Committee for further consideration. However, Mediation Committee agreed to a version of a bill needs to be further submitted to the president for assent as stated in section 79(1) that “The President must either assent to and sign a bill passed in terms of this chapter or, if the president has reservations about the constitutionality of the bill, refer it back to the NA for reconsideration. Nonetheless, if the president deems the newest version of the bill as unsatisfactory, he or she can refer it to the Constitutional Court and the decision of the court is the final as stated in section 79 (5) If the Constitutional Court decides that the bill is constitutional, the president must assent to and sign it.” The President can dissolve the NA even before its term of office expires. This veto power can even be extended to the Acting President when there is a vacancy in the office of the president as stated in section 50 (2, a and b) “The Acting President must dissolve the National Assembly if (a) there is a vacancy in the office of President; and (b) the Assembly fails to elect a new President within 30 days after the vacancy occurred”. The veto power of the executive president is also specified in section 50(1) (a and b) which read: “(a) the Assembly has adopted a resolution to dissolve with a supporting vote of a majority of its members; and (b) three years have passed since the Assembly was elected”. The President in South Africa appoints the Deputy President and Ministers and assigns them powers, national duties, and responsibilities and has the prerogative to dismiss any without any fear or favor as enshrined in section 91(2) of the 1996 constitution section 91(2) “the President appoints the Deputy President and Ministers, assigns their powers and functions, and may dismiss them.” These appointed public officials including the president form the cabinet as stated in section 91(1) that “the Cabinet consists of the President, as head of the Cabinet, a Deputy President, and Ministers. Likewise, the President appoints all the Deputy Ministers from the

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NA except two outside the NA to complement the work of the Cabinet as specified in section 93(1) below: The President may appoint-(a) any number of Deputy Ministers from among the members of the National Assembly; and (b) no more than two Deputy Ministers from outside the Assembly, to assist the members of the Cabinet, and may dismiss them.

The appointment of all Deputy Ministers from the NA with no more than two Ministers from outside the Assembly could undermine the NA’s oversight responsibilities over the president’s other government ministries, departments, and institutions. The practice has the potential to create a conflict of interest on the part of the NA. It could also weaken its role as an ombudsman of holding the president accountable to the people. Furthermore, one could argue that the practice seemingly defeats the tenet of separation of power. The veto power granted to the executive president in South Africa by the 1996 constitution is a vital oversight mechanism to scrutinize the legislative body’s lawmaking processes and any other related activities. It gives the veto players, the opportunity to double-check any public legislation and fiscal policy passed by a lawmaking body and any other auxiliary institution to comprehend its public impact on the citizenry. Although the veto power is vastly given to the president, the Constitutional Court in bill consideration before assent plays a crucial role in ensuring that the tents of the rule of law, good governance, transparency, and accountability are upheld at all times.

4.5

Judicial Independence and Separation of Powers

The South African judiciary has both individual and institutional independence (Devenish, 2003; Mubangizi & Siyo, 2015). Nonetheless, Aung (2021) avers that there is no definite definition for judicial independence. The 1996 Constitutional guarantees the principle of separation of powers and thus ensures institutional independence (actors and factors that protect and prevent judicial interference) of the judiciary. Judges in South Africa have the security of tenure which is linked to their “individual” independence and encourages them to act freely without any interference, fear, or favor. The Constitution enjoins the courts the power to issue orders that bind all as stipulated in section 165 (5) that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies.” Besides, in dealing with the state or an individual, the independence of the court is supreme, and a decision issued by the courts must be followed accordingly. The recent brouhaha between the Concourt, former President Jacob Zuma, the Zondo Commission, and the Constitutional Court regarding the allegations of state capture between 2009 and 2018 was a cause for concern when the orders by the Concourt were defiled by the former president. However, it was deemed to be contemptuous of the courts and other legislative acts and the former president has since been

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imprisoned to serve a year according to the court rules. This practically attests to the independence of the courts’ systems in South Africa. In South Africa, the notion of judicial independence is deeply entangled with the doctrines of separation of power and checks and balances. Apparently, an independent judiciary is crucial for the survival of all democracies because of the inevitability of conflict between the various branches of government. The judiciary has played and continues to play a crucial role in forbidding both the executive and parliament from interfering in the functions of the courts which is embedded in the tripartite system of government. Certainly, the 1996 constitution of South Africa expressly acknowledged judicial authority in the courts as stated in section 165 (2 and 3): “The courts are independent and subject only to the constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts.” The judiciary has the authority to declare bills passed and other regulations enacted by the legislature null and void if it is deemed to infringe on the rights, liberties, and freedoms of the people. South Africa is again a signatory to various intranational and continental conventions and treaties including the Universal Declaration of Human Rights (1948) (UDHR), the International Covenant on Civil and Political Rights (1976) (ICCPR), and the African Charter on Human and People’s Rights (1981) which professed judicial independence. For instance, Article 26 of the African Charter declares that: State parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.

The country has transitioned politically and legally from the legacies of apartheid rule to constitutional democracy, yet, there are broader aspects of governance including the judiciary that continue to endure some transformation (Wesson & Plessis, 2008); however, the independence of the judiciary is not in doubt. The judiciary has been immune to political meddling from the ruling and various opposition parties. The recent saga regarding the imprisonment of former President Jacob Zuma further attests to the independence of the court systems. Nonetheless, to better protect the spirit and letter of the constitution and the liberty of the citizenry, the judiciary must resist any interference. The assertion of judicial independence is a key element of constitutional democracy which is also rooted in the concept of separation of power. The establishment of the JSC and enactment of the Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001), and other Regulations to the Act to determine the appointment, financial remunerations, conditions, and benefits of Judges are tied to their individual independence. In South Africa, an Independent Commission for Remuneration of Public Office Bearers recommends the salaries and remuneration of judges in consultation with the executive president as depicted in Fig. 3. This further deters the executive from undue meddling in the salary and remuneration packages of judges. Again, the Office of the Chief Justice on April

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Independent Commission for Remuneration of Public Officebearers Recommendaons by the commission

The president

Constitutional Court (Judges)

Supreme Court of Appeal Judges

High Courts (Judges)

Magistrates and Other Courts (Judges)

Fig. 3 Financial independence of Judges in all the courts. Source: Authors construct-adapted from Republic of South Africa Constitution and Judiciary of South Africa, booklet on the conditions and benefits of judges

1, 2015, was established as a new department with a R5.2 billion budget allocation over a medium-term period to further strengthen the independence of the judiciary. The financial security of the judges tends to maintain judges’ individual independence, thereby averting undue influence from any of the organs of government. Again, remuneration during recess is also provided for by the Superior Courts Act 10 of 2013. The salaries, allowances, and benefits of Judges recommended by the independent commission are further gazetted which protect arbitrary reduction or suspension of judges’ salaries. The appointment of judges in South Africa could also be linked to their “individual” independence. While there may be some quasi-meddling of the executive in the affairs of the judiciary when it comes to the appointment of judges, the JSC plays a critical role in the president’s appointment. The president has the power to appoint all judges of all the courts; however, this prerogative is in consultation with the Chief Justice and JSC as stipulated in section 174 (3), reading in conjunction with (4) of the same article states The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure: (a) The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made and submit the list to the President.

The nominees can be rejected by the president; however, the JSC has the opportunity to further add additional nominees to the list previously submitted to the president for onwards appointment if the initial nominees are rejected.

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5 Recommendations The notion of separation of power is entangled with doctrines in constitutional democracies. The South African democracy is entrenched in the principle of separation of power and rule of law. The fundamental values underpinning most democracies tend to accentuate the issue of good governance, human rights, public accountability, and transparency. Thus, the recommendations are as follows: • Ministerial Appointments: The appointment of Deputy Ministers by the President from the NA with no more than two ministers from outside the Assembly should be critically looked at and reconsidered to curb any conflict of interest and ensure accountability and transparency absolute separation of powers. The practice has the potential to undermine the legislature from its oversight responsibilities over the executive and any other government ministries, departments, and institutions. • Judicial Appointment: The power to appoint or not to appoint judges should be vested in the hands of a constitutional independent commission such as the JSC devoid of any influence from the executive arm of government. Thus, the judge’s salary and remuneration should be determined by an independent constitutional commission to avoid executive control and influence. However, judges should still be vetted by parliament to ensure some degree of checks and balances. • Collaborative Governance: Strengthen national and provincial intergovernmental partnership and collaboration by devising mechanisms for arbitration to avoid the constant confrontation between the governing majority and the opposition parties in the country. A constructive partnership between and among the arms of government at all levels to curb the persistent mutual suspicion. • Parliamentary Capacity Building: Capacity building for members of parliament should be holistic and intersectoral to better position them to adequately scrutinize the bills on various issues and to serve as proper ombudsman of the public purse using their oversight responsibilities as stipulated in the 1996 Constitution. • Protection of the “Fourth Estate”: The media (“the fourth estate”) must be protected to ensure that there is a continuous discourse on issues of development, abuse of power, corruption, policy monitoring, accountability, transparency, and good governance.

6 Conclusion South Africa has demonstrated the tripartite system of public administration in the performance of the three branches of government at the national and provincial levels. The country has made significant progress in the functional and structural division between the three branches of government. The principle of checks and balances is well entrenched in the constitution and has been demonstrated by the branches of government in their respective duties. The independence of the judiciary is not in doubt judging from the recent Constitutional Court rulings against the

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former executive president. The oversight responsibilities of parliament over the executive and other national and provincial institutions further affirm the adherence to the doctrine of separation of power. Besides, the quasi-rubberstamping of the legislative branch of government has often resulted in the opposition political parties holding the government and the executive president on their toes. Thus, the conventional application of the tenets of separation of power has often been given a new perspective where there is a constant confrontation between the governing majority and the opposition political parties about public spending. This could be detrimental to the public as well as the constitutional mandate of the legislature to serve as a check and an oversight body of the executive. Besides, the political reality is that the governing majority (ANC) as in the case of the current National Assembly tends to have their way despite the fierce disapproval from the two major opposition parties, the Economic Freedom Fighters (EFF) and Democratic Alliance (DA). Moreover, in constitutional democracies such as South Africa, there are power limitations, either procedural or substantive laws that have to curb the abuse of power by any of the veto players. The delegation of powers to state institutions and other legislative bodies such as the JSC and several others is in tune with the idea of power distribution between and among the branches of government. This has also prevented unnecessary abuse of power, especially on the part of the executive. In addition, there is sustained political power and cordial relations between and among the branches of government at the national and provincial levels which further professes the cardinal tenets of separation of powers. The IRF Act, 2005, attests to the desire on the part of the three branches of government to perform their duties distinctively but collaboratively to create a situation in which the common good of the country could be advanced. The functional, structural, and procedural division of public powers with checks and balances continues to increase the citizen’s confidence in the three state organs. Again, the present structure of the national government coupled with the constitution and other legislative acts have encouraged good governance, facilitated intergovernmental relations, and provided suitable mechanisms and procedures to ensure there is transparency and accountability. Besides, the independence of the judiciary has further protected the bill of rights, which also places human rights and liberty at the center of South African society. The power of the legislature to serve as the ombudsman on the executive also limits the authority of the president. The functional and structural partitions between the branches of government are essential in promoting, safeguarding, and consolidating the emerging democracy in South Africa.

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A Rural Perspective on the African Peer Review Mechanism: Views on Socio-Economic Development and Public Service Delivery in Rural South Africa Betty C. Mubangizi

1 Introduction Democracy and political governance are not ends in and of themselves, but rather a means to any society’s socio-economic progress. One of the fundamental duties and purposes of the state is to provide basic services to its residents, which is a significant indicator of effective democracy and strengthening democratic governance. As a result, the efficient and effective delivery of public services remains a critical component of public administration theory and practice. Service delivery is also a question of human dignity, as it is connected to a variety of other aspects of people’s personal, economic, social, and political lives. Efficient and effective public service delivery is especially important in South Africa since many inhabitants only began to have access to basic utilities like electricity and sanitation when the country’s democratic local government was established in 1994. At its most basic level, delivering basic services to people is one of the state’s primary tasks and objectives, as well as a key indicator of effective democracy and competent democratic governance. As a result, the efficient and effective delivery of public services remains a critical component of public administration theory and practice. Furthermore, service delivery is a matter of human dignity and belonging, as well as being intertwined with other aspects of people’s and communities’ personal, economic, social, and political life. In South Africa, where many people acquired access to essential utilities like electricity, sanitation, and clean water after the democratic elections in 1994, efficient and effective public service delivery is extremely important. Since then, the

B. C. Mubangizi (*) NRF/SARChI Chair in sustainable rural livelihoods, University of KwaZulu-Natal, Durban, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_4

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country has seen a slew of new laws and reforms aimed at improving service delivery, with a special focus on local government. Local government in South Africa has undergone various reforms and revolutions in the post-apartheid era focused on quality service delivery as the administration level is closest to the people. The Government Municipal Demarcation Act of 1998, the Local Government: Municipal Structures Amendment Act of 2003, the Municipal Finance Management Act of 2003, the Municipal Property Rates Amendment Act of 2009, and the Municipal Systems Amendment Act of 2011 are all examples of legislation and a sound regulatory framework for local government and municipalities (BohlerMuller et al., 2016; Kanyane, 2014). Since then, various laws and reforms have been enacted to improve service delivery in the country, with a concentration on local government. Together with the Constitution, these rules and regulations establish and govern, among other things, what municipal services should be. The Municipal Systems Act of 2000 compels municipalities to prioritise the requirements of their local communities, support their growth, and guarantee their residents have access to essential services. Within the context of the Constitution, South Africa’s White Paper on Local Government lays the groundwork for a progressive local government system, which is characterised as one that is: committed to working with citizens, groups and communities to create sustainable human settlements which provide for a decent quality of life and meet the social, economic and material needs of communities in a holistic way (Ministry for Provincial and Constitutional Development 1998: 92).

The ideals explicit in the WPLG and related legislation echo the country’s Bill of rights and are in sync with the thematic areas identified in the APRM National Programme of Action, specifically, democracy, political governance, and socioeconomic development. Despite South Africa’s strong legislative framework designed to improve socioeconomic development, municipalities continue to fall short of community expectations, and service delivery, particularly to rural and low-income people, continues to deteriorate (Kanyane, 2014; Ngcamu, 2019). Slow and poor service delivery has sparked widespread service delivery protests all around South Africa. These protests have not only drawn attention to the local government, but they have also been linked to violence, police brutality, xenophobic assaults, and other manifestations of dissatisfaction (Human Science Research Council, 2016). Protests are also linked to the poorest inhabitants of the country, who are more likely to express their dissatisfaction through informal channels, while the wealthier part of the community prefers to use legitimate channels (Alexander, 2010, Andretta & Della Porta, 2020). Overall, studies demonstrate that water and power service delivery in South Africa has greatly improved over the last two decades (Akinboade et al., 2012; Krugell et al., 2010). However, the country has failed to reach the necessary or acceptable levels. Ngcamu (2019), Mubangizi (2019), Masiya et al. (2019), and Mubangizi (2021) all concur that service delivery is hampered by a host of challenges that risk quality, long-term viability, and proven success. As a result, service delivery issues and concerns in South Africa take up a large part of the research.

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Rural communities suffer more serious and fundamental challenges than metropolitan areas, such as access to safe drinking water and sanitation. Furthermore, while historical causes play a part in the rural environment, present political realities in rural South Africa may have an impact on public service delivery. Unless this divide is addressed in the country’s APRM, self-assessment reports will only convey half of the picture, and the ultimate purpose of assisting the country in improving its policymaking processes would be hampered. To begin, it is necessary to define the term ‘rurality’.

2 Defining Rural Areas and Municipalities Conceptions of rural areas are often based on their contrast to urban areas. Both cities and rural areas now have different proportions of rural and urban elements. Suburbanisation has increased the density of the population of many rural areas located around cities. Rural and urban areas are increasingly dependent on each other in many ways, including through the delivery of such services as transportation (OECD, 2010, 2013). McAreavey (2009) further observes rural areas themselves have experienced dramatic changes in recent decades. The place of agriculture has diminished in the rural economy, and people believe that agriculture should produce a greater good than simply food. Thus, rural areas and resources are increasingly viewed as having multiple functions such as aesthetics, besides food (McAreavey, 2009). The author also notes that phenomena such as climate change, the shifting nature of land ownership, and regulations by the state have further shaped rural areas. Rural regions are typically characterised by low population densities, scattered spatial settlement patterns, unemployment, and subsistence agriculture. Rural residents frequently have a poor socio-economic standing. Unemployment is frequently high, and housing, transportation, and healthcare are frequently inaccessible (Wark et al., 2013). According to the South African National Treasury (2011), the majority of South Africans who are impoverished reside in rural regions and rely on social assistance, subsistence agriculture, and remittances from a family working in mines or cities. Additionally, it notes that these households’ assets are frequently bound to traditional land tenure arrangements, making it harder for them to grow wealth through asset leveraging. Rural areas in South Africa are also characterised by unemployment and limited access to basic local government services such as water, sanitation, and electricity, as well as substandard social services such as health and education, as well as substandard transportation services such as good roads and buses (National Treasury, 2011). Yet, efforts to precisely define rural spaces in South Africa have been complicated by significant scale redefinition of municipal boundaries as part of post-apartheid government reforms and transformation. These reforms eliminated the administrative divide between rural and urban areas and accentuated the connections between

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countryside and town (National Treasury, 2011). One of the 1997 Rural Development Framework (RDF) is its attempt to define rural areas. It defines rural areas as the sparsely populated areas in which people farm or depend on natural resources, including the villages and small towns that are dispersed through these areas. In addition, they include the large settlements in the former homelands, created by the apartheid removals, which depend for their survival on migratory labour and remittances (Department of Land Affairs, 1997, p. 1)

While this term was not approved as the official definition of rural regions, it was stated in the 2010 rural development position paper that the majority of government agencies used it as a working definition, particularly because it emphasised rural communities’ situations before 1994 (Gwanya, 2010). There is no universally accepted definition of rurality or rural. Governments, divisions within governments, research institutes, and development organisations all have a unique perspective on what constitutes rural and rurality. The RSA Constitution makes no distinction between rural and urban regions when prescribing the mandate of local government, and the only differentiation made outside metropolitan municipalities is between local (category B) and district (category C) municipalities (S 155 (1)). Typically, Category A is made up of metros, C district municipalities, and B local municipalities. Even then, the distinction is based on the legislative and executive authority these categories of municipalities possess. The Municipal Structures Act, which provides for municipalities’ establishment, is more instructive in determining what is not metropolitan. Section 2 of the Act describes urban as (a) a conurbation featuring—(i) areas of high population density, (ii) an intense movement of people, goods, and services, (iii) extensive development, and (iv) multiple business districts and industrial areas, and (b) a centre of economic activity with a complex and diverse economy. According to the Municipal Structures Act, all areas that do not conform to the above are lumped together as category B and C municipalities, also known as district and local municipalities, respectively. In its most basic form, therefore, rural has been defined as everything that is not urban. Though not captured in the Municipa Structures Act (RASA, 2000), this definition is captured in the Municipal Infrastructure Investment Framework (MIIF), to include two distinct areas with varying socio-economic needs. The first consists of commercial freehold land on which commercial farmers can access a range of infrastructure to develop successful enterprises. The second relates to communal land, usually under the traditional authorities where residents occupy small residential plots and have access but not control over communal grazing land. South Africa’s Department of Cooperative Governance provides us with yet another distinction between rural and urban areas. The department uses such variables as the number of poor households, the proportion of households with access to services (water, sanitation and electricity), and information on capital and operating budgets to group municipalities in seven different categories as shown in Table 1. Unlike the Constitution of South Africa, 1996, which outlines three categories as described above, the Municipal Infrastructure Investment Framework (MIIF) divides

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Table 1 Classification of municipalities into categories for analysis Type of municipality Category A municipalities Secondary cities category B1 Large towns category B2 Small towns category B3

Mostly rural category B4 Districts category C1 Districts category C 2

Description Metros All local municipalities referred to as secondary cities All local municipalities with an urban core. There is huge variation in population sizes among these municipalities, and they do have large urban-dwelling population They are characterised by no large town as a core urban settlement. Typically, these municipalities have a relatively small population, a significant proportion of which is urban and based in one or more small towns. Rural areas in this category are characterised by the presence of commercial farms, as these local economies are largely agriculturally based. The existence of such important rural areas and agriculture sector explains its inclusion in the analysis of rural municipalities These are characterised by the presence of at most one or two small towns in their areas, communal land tenure, and villages or scattered groups of dwellings and typically located in former homelands District municipalities that are not water services providers District municipalities that are water service providers

Source: National Treasury’s Budget Review (2011: 76)

local and metropolitan municipalities into five groups. These are metropolitan municipalities/large cities (A); secondary cities (B1); municipalities with a large town as its core (B2); municipalities with small towns (B3) where commercial farms characterise rural areas and where livelihoods hinge on commercial agriculture. Lastly, B4 municipalities are predominantly rural, have villages or scattered groups of dwellings, and typically are located in former homelands. Municpal boundaries are often redrawn by the country’s demarcahtion board. As of 2020, there were 8 metroplitan, 44 district municipalities, and 226 local municipalities. Table 1 offers a more robust typology of the categorisation used by MIIF. The MIIF’s categorisation, which splits rural municipalities into B3 and B4 categories, is particularly helpful in clarifying rural livelihoods because there are significant differences that require significantly different policy interventions. The National Treasury’s Budget Review (National Treasury, 2011: 76) lays bear these differences. Firstly, 83% of households in B4 municipalities live in traditional communal settlements. In comparison, only 7% live on farms and in small towns, respectively, which speaks to the high population density in the B4 categories. Conversely, 52% of households in B3 municipalities live in small urban settlements, 29% on farms, and 10% in settlements located on communal land. Secondly, the categorisation points to the main livelihood activities in these municipalities. B3 municipalities have active agricultural sectors that carry significant development potential. Agriculture contributes 20% to gross value added (GVA) in B3 municipalities, reflecting the presence of commercial farming in these areas.

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By comparison, agriculture accounts for less than 10% of total GVA in B4 municipalities, while government, community, and social services account for more than 35% of total GVA. (2011) (IGFR). As previously said, rural regions are not uniform in terms of land ownership, kind of farming, and source of revenue for towns and their residents. Rural communities classified as B4 municipalities are a particularly vulnerable segment of South African society. Despite accounting for barely 25% of South Africa’s municipalities, they are home to some of the country’s most disadvantaged populations. In these municipalities, livelihoods are fragile. The population is highly reliant on public assistance and remittances. Additionally, towns in these regions rely largely on state handouts and have a small tax base. An analysis of Stats SA’s municipal financial data shows the extent to which rural municipalities depend on grants and subsidies (Statistics South Africa, 2020). The report suggests that grants and subsidies from the central government contributed 73% of the total revenue received by B4 municipalities in 2017. This being the case, it is easy to subsume the unique needs of B 4 municipalities in other types of local municipalities even though, as we have seen, they require unique and targeted policy interventions. There is a historical aspect to this because it is worth noting that most of these areas are found in the former ‘homelands’ of, mainly, Transkei and Ciskei.1 B3 and B4 municipalities are designated rural municipalities in numerous South African departments and are largely located in the provinces of KwaZulu-Natal, the Northern Cape, the Eastern Cape, and Limpopo. The fact that under-resourced municipalities and insecure rural livelihoods are concentrated on communal lands and historic homelands demonstrate rural communities’ unequal and restrictive patterns of resource management and access. These households’ assets are typically tied to communal land tenure arrangements, making it harder for them to grow wealth through asset leveraging. Unemployment and restricted access to basic local government services such as water and electricity, as well as inferior social services of health and education coupled with substandard transportation services such as decent roads and buses, characterize rural areas of South Africa (National Treasury, 2011). The establishment of wall-to-wall municipalities post-1994 was an attempt to ensure inclusive service provision in rural and urban spaces across the country and is a crucial tenet of the Constitution and related policies and legislation. The legislation sought to democratise local government, improve governance, and promote socioeconomic development for rural and urban communities alike. Parallel to this, and as the following discussion will show, there was a concerted effort to transform public service delivery by incorporating a solid thrust on decentralisation, community participation, and local governance. It is envisaged that the transformation of service delivery and the wall-to-wall local government would bring services closer to the people and, by implication, include the rural populace in socio-economic development. The following discussion alludes to these developments.

1

Financial Census of municipalities 2014.

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3 Developments in [Rural] Public Service Delivery in South Africa Institutionalisation of democracy and good governance are key tenets of APRM; without these, the delivery of public services will be found wanting. Yet the delivery of public services is fraught with several challenges which are best understood in the context of public administration. Literature generally points to three historical periods in the development of service delivery globally. These include the following (see Gurtoo & Williams, 2015): I. The Weberian approach focused on the inadequacy of services in infrastructure, health, education, and enforcement and on the development of a centralised bureaucracy for the provision of uniform and top-down public service. This approach was in place between the 1980s and 1990s and failed because it overlooked the political and social processes that necessitate interactions between citizens and the state. It is a widely criticised bureaucratic model in its traditional and neo-Weberian expression (Dunn & Miller, 2007; Nengwekhulu, 2009; Pepinsky et al., 2017). II. In the second phase of the evolution of public service delivery, technology and technological systems were pursued to provide coherent service delivery in an impersonal and rule-driven manner. While this recorded some success, it did not seem to be universally applicable. III. Public participation, accountability, transparency, and good governance have emerged in more recent years to define public service delivery. Technology, citizens, social systems, and state simultaneously interact through formal organisational structures. It has proven to offer practical and applicable solutions that are acceptable to citizens. As a result of globalisation and the growing involvement of civil society, public service delivery has shifted from ‘government’ to ‘governance’ (Antonucci, 2018; Parasuraman et al., 2018). However, parts of the top-down Weberian paradigm may be seen in South Africa, particularly in rural areas, where a one-size-fits-all approach is assumed (Nkuna & Sebola, 2012; Ndevu & Muller, 2017). Yet, each local government is distinct, with its own set of circumstances that necessitate a situational narrative of the issues it encounters. Furthermore, theories such as public choice (Eriksson, 2016; Haldane & Nicholson, 2016; Orchard & Stretton, 2016), transaction cost economics (Cheung, 2016; Wiesner, 2017), and principal agent (Delbufalo & Bastl, 2018; Parker et al., 2018) have influenced service delivery in rural areas through significant reforms in public administration. To improve service delivery, reforms have also absorbed private sector values, norms, and principles, such as customer attention, the transformation of work practices, and the use of market mechanisms and private sector managerial styles (Aucoin, 1990; De Vries et al. 2016; Hyndman & Lapsley, 2016; Klievink et al., 2016). While these might work for well-off municipalities, the same cannot be said for poorly resources, mainly rural municipalities.

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The APRM’s assessment processes do not appear to take into account the contrasts between rural and urban areas, particularly the issues of rural local administration. The third report on the implementation of South Africa’s APRM Programme of Action (2014), for example, is devoid of references to rural local government in several sections. According to reports, the RSA government made measures to guarantee that executive administrators were held accountable and could successfully oversee and carry out administrative obligations. A Management Performance Assessment Tool (MPAT) was created to accomplish this, and it was rolled out to national and provincial government departments, but not to local government. As a result, the APRM self-assessment report is silent on performance in the local government and, instead, focuses on the national government agencies and provincial government departments in terms of how performance agreements cascade within government. Yet it’s critical to look for ways to strengthen performance management techniques at the local level as well. There is a need to grasp the concerns and challenges of implementing public policies in the local government sector, particularly in rural local government, which has unique challenges, as the following discussion will demonstrate. The government’s communication processes provide more proof of APRM’s shortcomings in addressing rural ideals. South Africa’s use of both private and public media has remained strong, ensuring that government officials are enthusiastically involved in public discourses through the media, explaining government positions to the public and enabling a culture of balanced debates through the use of new media in the form of social media portals. The Presidency’s and other departments’ Facebook and Twitter pages are among the most popular in South Africa today, and they provide regular government updates. Furthermore, government websites continue to be an important source of information for news articles. The rural poor, who have limited access to broadband and smartphones, are excluded from using such ways of communication. To demonstrate this point, the Department of Communications (DoC) and Digital Technologies in South Africa, which is responsible for enabling the country’s digital transformation and achieving digital inclusion, reports that the use of mobile internet access devices in rural areas (45%) still lags behind that in metros (67%) and urban areas (65%). (63.7%). Furthermore, whereas 17.3% of households in metropolitan regions had access to the Internet at home, only 1.7% of rural households had access to the Internet (DOC, 2022). As a result, the government’s communication methods are not accessible to the rural population. Increased rural participation in policy development, including monitoring and evaluating government performance, demonstrates that they are becoming more aware of their rights and hence capable of holding the government accountable. Kanyane (2014) corroborates this view of service delivery by arguing that there is a link between improved communication and effective service delivery which is central to the realisation of a meaningful life for many poor people (Kanyane, 2014). Transforming the public sector is critical if South Africa is to improve its policymaking, adopt best practices, and comply with established standards and principles.

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The transformation of public services in South Africa is evidenced through a decentralised form of service delivery, wherein local government is constitutionally mandated to provide basic services. In the context of democracy and political governance, the APRM Report of 2017 affirms that continuous public and community engagement in all spheres of government has become common practice in South Africa. Yet municipalities continue to battle the challenges of infrastructure backlogs and less than ideal service provision, while rural municipalities generally bear this brunt. It is worth exploring service delivery in rural municipalities to showcase the uniqueness of this space and concurrently highlight the need for rural–urban disaggregation in the process of compiling APRM reports.

4 Public Service and the State of Service Delivery in South Africa In their edited volume, Gurtoo and Williams (2015) define public service as those services expected from the government, even if other sectors such as the community, market, or other organisations can theoretically deliver such services more feasibly. Examples of such services include the police, housing, basic education, primary healthcare, water and electricity. Most people believe that such services should be in the hands of the government rather than other sectors. This is because of the belief that, unlike the private sector, the government is constitutionally driven and not profit-driven. Additionally, Gurtoo and Williams (2015, p. v) note that because such services involve decision-making by ‘inherently imperfectly organised, or incomplete, or unevenly distributed’ providers, they are more suitable for delivery by the public sector. These services are essential for a society to function and are primarily funded through the public purse (Gurtoo & Williams, 2015). According to the authors, service delivery further involves the effective management of some key elements. These are as follows: (1) resources used for service provision including staff, funds, material, and all assets; (2) information and awareness, primarily good public relations and public education by engaging with critical audiences proactively; (3) efficiency of service delivery mechanism, including the integration of mechanisms, and (4) accountability and responsibility as the main drivers of successful delivery. Thus, in the long term, the goal of public service delivery is the efficient and effective key services such as education, sanitation, clean water, public health, and roads using rule-based, accountable, and effective public agencies (Gurtoo & Williams, 2015). Basic services such as adequate water supply and sanitation are regarded as the pillars of improved quality of life, well-being, and dignity. In its analysis of the state of service delivery in South Africa, StatSA pointed out that access to such basic services is also related to social inclusion and can impact the economic and social development of a community (Statistics South Africa, 2017). The South African

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Constitution places the basic needs of communities and the promotion of their economic development as the priority in the structuring and managing municipality administration, budgets, and planning. The Constitution, however, does not provide much detail on the precise services that municipalities are to provide besides its emphasis on the provision of such services in a sustainable manner and in a way that promotes socio-economic development (RSA, 1996: S152 (1)). In the Municipal Systems Act, a basic service is defined as a service that is necessary for an ‘acceptable and reasonable quality of life’, without the provision of which public health, safety, and the environment will be endangered (Local Government: Municipal Systems Act, 2000). While being specific to an extent, this definition leaves room for a contextualised and flexible determination of which should constitute basic services at any given time and place. However, most usage of the term basic services in South Africa often refers to providing and accessing water, sanitation, electricity, refuse disposal, and housing (Bailey, n.d.; Statistics South Africa, 2017). These are also the most commonly used indicators of service delivery in South Africa which the APRM report of 2014 collectively refers to as ‘constitutionally mandated basic rights and services’. Essentially, much of service delivery engagement, both from policy-makers and academics, neglects several other vital dimensions and populations, including the rural–urban divide, even when such factors require more streamlined and targeted policy responses. APRM should not be seen as neglecting such vital dimensions—if it is indeed a tool for reinforcing best practices and identifying deficiencies to foster standards and practices that lead to political stability, high economic growth, and sustainable development. In 1994, only 59% of South Africans had access to clean and safe drinking water, according to the 2017 APRM report. Twenty years later, access to safe drinking water increased to a national average of 95%, a more than 35% increase. Without a question, remarkable progress has been made in delivering basic services, with the backlog greatly decreased. While the national average appears to be rather commendable, it readily obscures the finer subtleties of the rural–urban gap. A closer examination reveals a different, if not deeply disturbing, picture in which the delivery of basic services varies significantly between rural and urban municipalities. Wazimap, a portal that provides easy access to South African census data, is employed to emphasise rural–urban disparities. A comparison of service provision in eThekwini Municipality—a metropolitan area in KwaZulu-Natal Province (Graph 1)—and OR Tambo District Municipality—a largely rural municipality (Graph 2)— reveals significant discrepancies. While 98.3% of households receive water via piped water from a regional service provider, only 33.1% of houses in the OR Tambo District Municipality receive water via piped water. The majority of households in OR Tambo (62%) obtain their water from rivers and springs. Furthermore, 81% of homes in eThekwini Municipality receive refuse disposal services, compared to only 6.5% in the OR Tambo District. It is concerning that improperly disposed domestic waste makes its way into the river systems from which homes obtain their water. It is hazardous to human health and gradually deteriorates the ecological infrastructure.

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Graph 1 Service delivery in eThekwini Metropolitan Municipality

When one considers the discrepancies in toilet facilities, the situation becomes much more disturbing. While 82% of homes in eThewkwini Municipality have access to flush or chemical toilets, just 21.4% of households in OR Tambo Municipality have proper sanitation, with 67% depending on pit toilets. The overall picture emerging from Community Survey Data, Statistics South Africa (2017), offers further insights into the current state of service delivery in South Africa. The analysis indicates a significant improvement in sanitation between 2011 and 2016. However, the data also show that many South African

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Graph 2 Service delivery in OR Tambo District Municipality

households still live in poor sanitary conditions. The analysis also shows that as municipalities became more rural, households without sanitation services increased (Statistics South Africa, 2017). In addition, the data show that while other services such as electricity and waste disposal have improved, such services were higher in more urban municipalities than in rural ones, and maintenance, among other things, was often poorer and more neglected in rural areas.

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From the above analysis, one can deduce that infrastructure for basic services and the levels of such services is worse in poor, mainly rural municipalities. These nuances are not adequately captured in the APRM, for example, in reflecting on service delivery achievements since 1994. South Africa’s Third Report on the implementation of South Africa’s APRM Programme of action asserts that in 1994 only 59% of the populace had access to clean and safe drinking water (APRM, 2014: 98). Eighteen years later, the country has progressed to a national average of 94.7% access to basic water services for all South Africans and that the backlog now stands at 5.3%. Without a disaggregation of the rural–urban divide, the nuances of sanitation problems faced by people in rural areas are lost in the assessment. In the same report, an assessment of satisfaction with service delivery by local municipalities is presented but only focuses on selected metropolitan areas and does not give a picture of satisfaction levels in rural areas. The following is a discussion of the distinctive characteristics of South Africa’s rural municipalities, which should be considered in future APRM self-assessment reports. Understanding and responding to the characteristics listed below should help improve the country’s policy-making, adoption of best practices, and adherence to set norms and principles.

5 Governance in Rural Areas Nkomo (2017) examined elements that may impact the public’s opinion of local service delivery, including interactions with local councillors, councillors’ performance, and their trustworthiness, as well as people’s reaction techniques to service delivery difficulties in their municipality. According to the report, over half of South Africans (54–56%) believe municipalities operate moderately poorly or extremely poorly in terms of road maintenance, marketplace upkeep, land use management, and health standards maintenance. Keeping communities clean received a modest boost in score. The majority of respondents who gave good ratings to local government services were urban, employed, white, and highly educated. Negative evaluations were shown to be connected with rural residence and poverty. Additionally, the study establishes a link between perceived service delivery and the attitudes and behaviours of local political leaders. Thus, individuals who see their councillors as being receptive to their concerns or as industrious were more likely to have a favourable opinion of local service. Surprisingly, people who paid bribes for services had a favourable opinion of service delivery, whereas those who engaged in demonstrations had a more negative opinion. In terms of what citizens do when they identify problems with service delivery, Nkomo’s (2017) study found that about 76% of people who said they had problems with how local governments were run discussed such problems with other community members at least once. More than half (58%) did not discuss the problems with religious, community, or traditional leaders instead of 41% who discussed with such leaders at least once. Moreover, 84% never explored any public forum such as

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newspaper or radio shows to discuss such problems, while 14% did at least once, and about 24% complained directly to local government officials at least once through letters or in person. Overall, the study demonstrates the significance of local political leaders’ attitudes to service delivery perceptions. It also shows that most citizens do not exploit formal channels to address problems they perceive or experience with service delivery in most local [rural] municipalities. The National Treasury in its 2011 Local Government and Expenditure Review emphasised the importance of focusing on infrastructure in the provision of services to rural areas, as a way of providing essential services, but also stimulating development, poverty reduction, employment, and social capital development. The review argues that because road infrastructure connects rural areas to urban centres, it enables mobility of people, goods, and services, thereby enhancing access to local markets and public services like ambulances, mobile clinics, police, and job opportunities (National Treasury, 2011). Also, water infrastructure can immensely stimulate small- and large-scale agriculture in rural areas; electricity infrastructure can generally improve the lives of people and enable the development of small businesses (National Treasury, 2011). However, the review also highlights the need to ensure that service levels match what rural households can afford and involve the optimal use of available resources.

6 A Network of Role Players Is Responsible for Services in Rural Areas A primary method of funding rural services is the Municipal Infrastructure Grant (MIG). According to the Department of Corporate Governance and Traditional Affairs (COGTA, 2018a), the MIG aims to provide grant funding to enable municipalities to eradicate backlogs of municipal infrastructure in poor communities and to ensure that basic services are provided, such as water, roads, community lightings, and sanitation, to poor households. The management and transfer of the MIG and implementation support is the responsibility of COGTA. The 2017/2018 annual report of COGTA showed that since 2012/2013 (the past 5 years) a total of R3.4 billion in transfers from underspending municipalities was stopped and the money reallocated to municipalities that put the MIG grants to better spending. However, the report also noted that this negatively punishes poorer municipalities because of their lower capacity to sue such funds. Such reallocation needs to be stopped and alternative solutions pursued (COGTA, 2018b). The municipalities with weaker spending were also identified as having major challenges affecting their spending. Thus, they were considered distressed or dysfunctional and unable to provide citizens with necessary services in the required professional, caring, and efficient manner (COGTA, 2018b). Another source of funding is the Rural Household Infrastructure Grant (RHIG) introduced in 2011 and managed by the Department of Human Settlements (DOHS).

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The primary aim of the RHIG is to supplement existing sanitation funds and eradicate water and sanitation backlogs in selected rural municipalities to rapidly rollout relevant onsite infrastructure such as water tanks and ventilated improved pit (VIP) latrines. Through public works programmes, it was hoped that rural communities would support the initiative and manage and maintain installations (National Treasury, 2011; Roux et al., 2014). The project specifically targeted rural households which cannot easily access piped water and sanitation services due to their remote location (Roux et al., 2014). Several other programmes exist that contribute directly or indirectly to service delivery in rural areas, many of which target or are framed within local economic development and which traverse the three spheres of government through intergovernmental fiscal relations. But there are other aspects to rural service provision that requires further exploration and that is the diversity of actors typically at play in supporting rural livelhoods. Fleming et al. (2018) draw attention to resilience as a key characteristic of rural communities. While rural communities are constrained by their geographical location, financial difficulties, poor public services, and several other stressors, they have displayed resilience and strength in the ways they respond to challenges and the risks that define their lives. They often depend mainly on community social support, especially from families and friends and services from community and religious organisations. Fleming et al. (2018) note that their traditional beliefs and other geographical and environmental factors increase their resilience. Central to the strength and stability of rural communities are the relationships among people determined by their trust in each other and the normalisation of reciprocity, in addition to a sense of belonging, shared values, cooperation, and the sense of community (Fleming et al., 2018). In her research to map out the network of actors involved in public service delivery in the rural community of Matatiele, Mubangizi (2021) highlights the diversity of actors at play in rural livelihoods. Her research showcases how households and local institutions operate within a network of actors to promote socio-economic development beyond the local government institution, with the following worth highlighting.

6.1

Civic Organisations

Mubangizi (2021) found an increasing number of civic and community organisations functioning to provide a variety of services during her study mapping the network of players in rural Matatiele. The apparent inability of local government to meaningfully improve livelihoods has resulted in an upsurge in NGO activity and community-based organisations. While this is a great trend, communities must be protected by monitoring these local civic structures and setting procedures to guarantee that vulnerable individuals are not abused and that organisations have genuine intentions. Additionally, these municipal entities confront several obstacles and their services are dispersed insufficiently to have a meaningful influence on livelihoods. A noteworthy development is the formation of a consortium of civic

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entities in the Matatiele area under the banner of catchment management. This is crucial because it demonstrates that, in the absence of national institutions and policies, local groups can unite around issues essential to their livelihoods. And this is critical to remember when highlighting best practises at the local level in the context of APRM.

6.2

Traditional Leaders

In the context of participatory, cooperative government, traditional leaders have an essential role in fulfilling. This is particularly true for rural areas’ socio-economic development and poverty eradication and specifically for communities on a communal land tenure system. Many researchers have lamented the inadequate recognition and clarity of their role in rural local government. The question typically centres around how a meaningful and dynamic relationship could develop between traditional leaders and municipal councillors. Tlhoaele (2012) and Qumba (2021) believe that an effective partnership between the two would provide effective provision of basic services and enhance the development of mainly rural people. For example, Tlhoaele (2012) argues that traditional leaders can play a role in improving public trust and nurturing the protection of public infrastructure to prevent vandalism that typically occurs during service protests. For Matshabaphala (2017), traditional leaders ensure cohesion and also an enabling environment for the creation and delivery of public value to the public. The traditional leadership’s contribution to local administration appears to be particularly valued due to its services in managing collective choices and settling conflicts in order to maintain social cohesion and contribute to the development of these places. As is the case in a large number of communal land-based societies, the legally mandated function of local government as represented by councillors appears to coexist with traditional leaders. However, the public recognises that traditional leadership lacks the resources and expertise to offer basic services in any meaningful way. While APRM is primarily concerned with contemporary, democratic public institutions, it may be worthwhile to examine issues of traditional leadership and indigenous governance processes and how they may contribute to the stability and development of rural places.

7 Service Delivery Challenges in Rural Areas The preceding demonstrates that rural services are often substandard in comparison to metropolitan ones, while rural places’ unique connections foster resilience, stability, and growth. These are worth examining in order to inform APRM Reports, which now present a national image of democracy and socio-economic development accomplishments without disaggregating rural and urban populations. While the

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2017 APRM Report makes note of rural-specific programmes, it lacks a determined effort to disaggregate data on service provision by rural and urban municipalities. However, as this debate has demonstrated, rural communities have particular requirements that necessitate a closer examination when reporting on national accomplishments. I have highlighted some of the particular issues that rural communities confront below.

7.1

Small-Scale, Inconsistent, and Ad Hoc Solutions

According to Gurtoo and Williams (2015), the dominant narrative from the developing and underdeveloped world is typically one of government’s failure to provide essential services to its citizens, frequently as a result of the small-scale, inconsistent, and ad hoc nature of such service delivery efforts. As a result, governments pay little attention to informal economies and other sources via which individuals might substitute for or compensate for government-provided services. In South Africa, numerous public works programmes designed to create jobs in rural areas are often fragmented and insufficiently distributed to have a substantial influence on people’s socio-economic situation. This also results in significant deficiencies in tax and other revenue collection, further depleting the local municipality’s budgets, hurting service delivery, and perpetuating the vicious cycle.

7.2

Inappropriate Technologies and Municipal Infrastructure Grant Limitations

The SA National Treasury (2011) identified as a major challenge, the use of urbanbased technologies to deliver services to rural areas. The spatial nature of rural settlements makes it difficult and expensive to apply such urban-based technologies in service provision. Notably, in many rural areas, networked services such as waterborne sewerage and piped water are simply too expensive to install and unaffordable to operate (National Treasury, 2011: 198). Further access to broadband is paticulalry challenging in rural areas. Additionally, SA National Treasury (2011) notes that there is limited awareness and knowledge of technologies that can be used as alternative ways to provide services to rural villages at low cost and appropriate for the low-density population and water shortage (National Treasury, 2011: 199). Rural municipalities also primarily depend on the Municipal Infrastructure Grant (MIG) to fund services. Still, the grant design and management do not allow services backlogs to be sustainably eliminated in rural areas. Most municipalities use it to rehabilitate and upgrade infrastructures in towns as households in towns are more likely to pay for services than rural households (National Treasury, 2011).

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A Weak Revenue Base and Weak Revenue Collection Methods Several urban-based municipalities have a good revenue base in form of property rates, service payments, and other taxes. However, as observed in a 2009 Cooperative Government and Traditional Affairs (COGTA) report, local municipalities are very vulnerable both from a revenue generation and an institutional development perspective. They are located in economically depressed areas and have difficulty attracting and retaining skilled managers, professionals, and technicians. They may be financially nonviable, articulate distress via heightened levels of community protests, and be particularly vulnerable to political control and poor institutional management and compliance (COGTA, 2009: 22–21). It is not only that rural-based municipalities have a weak revenue base, but also they are, in addition, hamstrung by ineffective revenue collection methods and a history of non-payment for services. Mubangizi (2019) inability to pay for services is a significant part of low revenue collection levels. The credibility of the enforcement mechanisms and penalties imposed on defaulters affect citizens’ ability to pay service charges. Enforcement mechanisms and the imposition of penalties all relate to a complex administrative process that many rural municipalities may not be privy to.

7.3

Political Overreach

A healthy interface between politicians and officials is helpful in local government institutions. Sometimes, the boundaries get blurry, leading to political overreach into the administration of local governments. Mngomezulu (2020) noted that South African political interference in the administration of service delivery is a severe problem in many municipalities. Kanyane (2014) identified the ANC’s cadre deployment policy as a challenge for municipalities, arguing that this policy systematically prioritises loyalty over merit and competence. Thus, the ANC often deploys unqualified and incompetent politically connected people to senior positions, leading to poor service output in communities. Twala (2014) highlights concerns about this policy, including its being subjected to abuse and deployed cadres pursuing the interest of the deployment committee to the detriment of the people, which weakens the structure put in place to ensure accountability in public service. Noting claims that cadre deployment has produced desirable outcomes in some instances, Twala (2014) contends that such success occurred despite the cadres being deployed and not because of it. In other words, such successful cadres did not succeed due to cadre deployment and did not allow the strings attached to such deployment to interfere with their work. In both its fourth and fifth National Policy Conference recommendations (ANC, 2012, 2017), the ANC seeks to renew and revive the cadre policy as a valuable component of the survival and success of the party and its service to South Africa. However, it emphasises the need to have and deploy educated, competent, practical, reliable, and trustworthy cadres who can provide desired political and communal

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leadership and deliver effective services. It also aims to utilise rigorous monitoring and evaluation to measure its cadre’s performance in the various leadership positions.

7.4

Weak Institutional Capacity

A lack of capacity and human resources in service delivery is an identified problem beyond the cadre deployment policy. In many instances, administrative employees have been found wanting in this regard, despite their usually being in direct interaction with citizens and processes relevant to service delivery. For example, van Antwerpen and Ferreira (2016) conducted a study on low-level non-managerial administrative employees in Gauteng such as typists, data capturers, office managers, personal assistants, executive secretaries, secretaries, receptionists, and administrative and filing clerks. Their findings show that while such employees reported being generally satisfied with their work environment and several job factors, they had low competency levels such as keyboard and typing skills. Ndzelu made similar observations. In a study on compliance with legislation, Ndzelu (2016), using Matatiele Local Municipality as a case study, noted that while many municipalities may be compliant with IDP legislation, there was a noticeable lack of capacity to plan for the long-term and efficient project implementation. Ndzelu noted that some municipalities often employ external consultants and, through this partnership arrangement, manage to execute their legislative mandate of project planning and management tasks (Ndzelu, 2016: 73). Such partnership arrangements, beneficial as they might seem, are viewed with suspicion because Ndzelu also observed criticism of this approach by some officials, who ‘feel like the external service providers (partner) are trusted more than the officials themselves’ (Ndzelu, 2016). In addition, according to a Statistics South Africa Report of 2020, there were 334,086 funded posts across local government in 2019. Of these, 53,569 were unoccupied, translating to a national vacancy rate of 16%. The smaller municipalities regularly point to difficulties with recruiting and retaining suitably skilled staff. A treasury report attributes this to a combination of skills shortage in particular professions and a rigid approach to employment equity. The same report notes a reluctance by people with the skills required to work for these municipalities given the high politicisation of municipal workplaces and the lack of quality amenities in those areas. Weak institutional capacity is one of the main reasons for poor municipal performance.

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8 Vertical Imbalances in Resource Sharing In its 2016 report, the Democracy, Governance and Service Delivery (DGSD) Programme identified an imbalance in resource distribution as a significant challenge to service delivery. The distribution of resources between national and municipal governments and municipalities gravely affects the delivery of services to the poor. As I have argued elsewhere (Mubangizi, 2021), many rural-based municipalities lack sufficient funds to carry out their constitutional mandate, mainly because of the inequitable distribution of resources from the central treasury. Although generally sub-national governments are not financially self-sufficient, they display weaknesses in revenue-raising capacity, falling short of their expenditure responsibilities. For example, according to Ajam (2014), in 2013/2014, provincial governments received about 44% of the pool of nationally collected revenue after debt service obligations and the contingency reserve had been top-sliced, national government received 47%, and local government (municipalities) received just under 9%. In many small rural municipalities, the revenue bases are so limited that they do not allow for much more than the employment of core staff.

9 Conclusion In the context of rural South Africa, this chapter highlights the complexity and breadth of service delivery, as well as the challenges that come with it. The discussion in this chapter demonstrates that rural areas differ significantly from urban areas that rural areas are not homogeneous and that understanding the plight of South Africa’s poor necessitates a disaggregated approach to the country’s achievements across these diverse geographical spaces. Rural service delivery challenges, such as local citizen participation, and specific key services, like water, sanitation, and transportation, should be mentioned in APRM Reports. Traditional leadership and indigenous governance systems and their potential contribution to rural stability and development are worth looking into. This chapter also highlights the distinctive characteristics of South African rural municipalities, which should be considered in future APRM self-assessment reports. Understanding and responding to the features discussed in this chapter should assist the country in improving its policies, implementing best practices, and adhering to established norms and principles, which is what peer reviews are all about. Acknowledgments The financial assistance of the National Research Foundation (NRF) towards this research is hereby acknowledged. Opinions expressed and conclusions arrived at are those of the author and are not necessarily to be attributed to the NRF.

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Democracy, Peace and Stability in South Africa: The Struggle Continues Enos Lekala

1 Introduction Following decades of protracted conflicts due to different discriminatory and minority-ruled regimes in the past, South Africa has eventually seen a relatively peaceful transition into democracy in 1994. With the dawn of democracy came equal popular participation in the public affairs of the country, outlawing of racism and similar discriminatory practices, the adoption of the constitutionalism principle and the resultant institutionalization of constitutional democracy. Further, the democratic dispensation saw the apartheid-era military incursions into the neighbouring countries ceasing, and the country coordinating concerted efforts to build and deepen peace and stability at home. It has also since begun to play a vital regional, continental and global role in promoting peace, stability and prosperity. However, while South Africa’s efforts to build peace and stability both within its borders and elsewhere are commendable, there remain several areas of concern that pose an imminent threat to peace and stability for the country. At the heart of its struggles lies the triple-helix of poverty, inequality and unemployment. This is inextricably linked to the land question and transformation as well as sporadic, and yet recurring, xenophobic attack incidents. The same pattern of recurrence and sporadic nature is identifiable with racism—a deeply rooted scourge still haunting

The original version of this chapter was revised with the incorrect author name “Lekala and Enos”. A correction to this chapter can be found at https://doi.org/10.1007/978-3-031-16313-5_12

E. Lekala (*) School of Public Leadership, University of Stellenbosch, Stellenbosch, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023, corrected publication 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_5

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the healing nation. All these issues are intermittently exacerbated by crime and corruption at different scales in institutions and communities alike. Helpfully, South Africa possesses a solid array of democratic institutions and mechanisms with which to tackle various socioeconomic issues, including the question of how to deepen democracy and maintain law and order to promote peace and stability. Yet, for how long could such mechanisms and institutional instruments quell the potential threats? Are there any salient factors that are at play? What are the conceivable future scenarios with which South Africa’s democracy, peace and stability should be considered?

2 Conceptual Framework 2.1

Democracy, Peace and Stability

The words democracy, peace and stability have infiltrated our everyday use. However, that they have become colloquial does not always imply that they are easy to define, nor are they commonly understood across time and space. South Africa, for example, could generally be referred to as a democratic regime. However, such a point does not sufficiently reflect the polity that South Africa is, given that the institutional architecture and the judicial-political nexus that characterize the country are far more complex than it would appear at first instance. It is therefore necessary that, even though it would probably require a different treatise to delve deeply into each term, attempts at defining the terms as they apply to the South African context are made at the very least. In the run-up to the historic 1994 democratic elections, and the short period following the landmark elections, both scholars and practitioners were preoccupied with the question of what type of South Africa was to be, would be, could be or should have been. Connors (1996), for example, noted that due to the power-sharing and similar arrangements that came with the Government of National Unity, South Africa qualified as a consociational democracy. Yet, power-sharing has remained a key element with South Africa’s government divided into three spheres that enjoy autonomy. Does this then still qualify South Africa as a consociational democracy post the transition government? Majoritarianism is another principle that is often associated with South Africa’s representative democracy; unlike the classical democracy as practised in ancient Athens in Greece, South African citizens do not govern their country directly but do so through their elected representatives. The reference to majoritarianism emanates from the observation that political parties with majority representation in different spheres of government set the agenda with little sway from non-majority parties. Concerns have already been raised on ANC’s majority as a key defining feature of post-apartheid South Africa (Southall, 2014), with the country losing meaningful direction due to ANC. However, such notions of South Africa being a majoritarian democracy conflate proportional representation with majoritarianism as the latter means the party with majority representation rules almost unfettered, while in the

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case of proportional representation all political parties can always tip the scale of the balance of power and therefore change the making of the government of that sphere or jurisdiction. The Constitution of the Republic of South Africa (1996) declares South Africa to be a constitutional democracy in a unitary state. This means that the Constitution (1996) serves as the supreme law of the country and that, despite the three-tier governance model, South Africa is not a federal state like Nigeria and the United States of America (USA). The following are the institutions supporting democracy: • • • •

Judiciary. Public Protector. Human Rights Commission. Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. • Commission for Gender Equality. • Auditor-General of South Africa. • Independent Communications Authority of South Africa. Irrespective of the type of democracy in question, any democracy functions better under the conditions of peace and stability. Peace and stability are interconnected for their mutual impact but are not synonyms. Peace is essentially defined as the absence of war—a situation of openly violent conflict between two or more, often armed, groups whose premeditated intention is to cause harm, death and/or inflict catastrophic damage (Fox, 2014: 4). This is what Galtung (1969) called negative peace. Yet a question arises: Do countries not engaged in war necessarily experience peace? In his typology of violence, Galtung (1969: 173) contends that violence goes beyond the physical as it could also be structural, even psychological. It is, therefore, possible that a country not engaged in a fully fledged violent war or conflict could lack peace. This renders the concept of peace elusive and subjective. It is for this reason that there are variations to it: liberal peace, cold peace, warm peace, political settlement, militarized peace and so forth. There are two basic conditions that Galtung (1969: 167) set for conceptualizing peace: • Peace is a social goal that is, or at least ought to be, agreed to by many if not most—after all, if there is anything learnt in the history of war is that there are always merchants of war. • Peace is complex and difficult, but not necessarily unattainable. Peacebuilding is a lengthy, often complex process, not an event requiring continuous work. Accordingly, for the purposes of this chapter, the concept of peace as it applies to South Africa needs to be defined and adopted. The preamble to the Constitution (1996) of South Africa, as a codified vision, aspiration and the supreme rule agreed to by the citizens, captures it succinctly—the Constitution aims to: • Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. • Improve the quality of life of all citizens and free the potential of each person.

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• Lay the foundations for a democratic and open society in which government is based on the will of the people and in which every citizen is equally protected by law. • Build a united and democratic South Africa that can take its rightful place as a sovereign state in the family of nations. Therefore, peace, for South Africa, means the removal of physical and structural barriers to full human potential growth, safety and prosperity for all while healing the past and building a just society that is informed by democratic values. This definition goes beyond the absence of war and takes into account both the structural and personal elements of peace. The conditions that result when efforts are geared towards peacebuilding, social justice and prosperity for all succeed and create stability thereby minimising prospects of violence and volatility. Thus, peace and stability are mutually reinforcing concepts with the latter’s central tenet being positive predictability of the context in question. The following sections examine and review the state of democracy, peace and stability utilizing the African Peer Review Mechanism (APRM) thematic area of democracy and good political governance broadly.

3 Identified Issues from the First-Generation APRM Report with Implications for Democracy, Peace and Stability: Emerging Insights South Africa acceded to the APRM at its inception in 2003. It has since been a pioneering member in promoting the APRM as the unique self-monitoring mechanism on the continent. Accordingly, South Africa was peer-reviewed on 1st July 2007 at the APRM Forum of Heads of State and Government. The following section provides an overview of contentious issues identified in the first-generation report on South Africa that have implications for democracy, peace and stability in the country: • • • • •

Nation building; Poverty, inequality and unemployment; Land question and reform; Racism and xenophobia; Corruption and crime;

3.1

Nation Building: Managing Diversity

People are the most important assets of any country. Some of the most prosperous countries such as Indonesia and the USA have harnessed, despite the atrocities that

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were endured at one point or another in their histories, maximum potential of their peoples. This is despite the diversities, perceived or real, found among their peoples. For a country to successfully manage diversity, it needs to attain this in three strategic aspects of its society (Country Review Report: South Africa, 2007: 287): – Political: This is required to ensure that everyone, irrespective of race, creed or gender, can articulate and express their secured political rights without hindrance equally. – Economic: This is required to ensure that all members of society have equitable access to economic opportunities such as employment, productive assets such as land, and economic enabling systems such as credit. – Social: This is required to ensure that a welcoming and conducive environment is created and sustained wherein members of society can equally express their sociocultural identities, norms and practices. From the onset, it became apparent that democratic South Africa was to be anchored on an inclusive consensus-driven society as opposed to its divided past characterized by a racialized discriminatory society. To international acclaim, the Truth and Reconciliation Commission (TRC) played a pivotal role in South Africa’s democratic transition as it created a trusted national atmosphere for peacebuilding and reconciliation efforts based on restorative justice than retributive justice. However, the government ignored some of the crucial recommendations from the commission thereby risking the sustainability of peace and political stability in South Africa inadvertently in the long term. A case in point, the TRC recommended financial reparations of R136 000 per person in annual instalments for 6 years. Instead, the government paid a once-off R30 000 per person (Country Review Report: South Africa, 2007: 58). Further, the commission had recommended a once-off wealth tax by apartheid benefactors to mobilize financial resources desperately needed to reconstruct South Africa but, yet again, to government’s no avail (Country Review Report: South Africa, 2007: 62). This, among others, has served as a breeding ground for some of the dissatisfaction with the transitionary compromises that were made (Villa-Vicencio, 1999). To date, there are still questions as to whether the negotiated political settlement worked in favour of all South Africans.

3.2

Poverty, Inequality and Unemployment

While poverty, inequality and unemployment are substantive socioeconomic issues that could be analysed individually, for purposes of this evaluative task, it is advisable to treat them collectively due to their causal and mutually reinforcing relationship. In its Diagnostic Report (2011: 6–7) that examines South Africa’s most pressing socioeconomic issues and their root causes, the National Planning Commission (NPC) makes the inextricable link among the three explicit and goes further to note the triple-helix as “our biggest challenge.” In the commission’s view, “. . .these high levels of poverty and inequality have a historical basis in apartheid

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and are driven principally by [unemployment]. . . (NPC, 2011: 7).” It is thus crucial to view these issues collectively in order to appreciate their complexity as a whole, and how they impact well-being, security and stability for South Africa. The First-Generation Country Review Report (2007: 274) concurs that, allowed to persist for an extended period of time, the triple-helix challenge could lead to systemic collapse of society. For example, structural unemployment—a perennial and worsening challenge that South Africa has been grappling with since pre-democracy, could lead to family tensions and breakdowns; homelessness; heavy indebtedness; social instability, and ultimately market instability. These have heightened potential for people to resort to crime, violence and risky behaviour in general. The potential for the triple-helix to implode South Africa increases with the rise of political entrepreneurs who persistently exploit the frustrations of those who are economically disenfranchised and materially dispossessed (Madonsela, 2021; NPC, 2011: 7). Coupled with the poor service delivery by government (First-Generation Country Review Report, 2007: 275; NPC, 2011: 7; 22), hopelessness and loss of public trust, it is not far-fetched to state that South Africa is perilously galloping to the edge of a crisis it has never experienced since 1994. The inevitable adverse impact of COVID-19 on the triple-helix could precipitate this crisis. The violent #FreeZuma protests that engulfed South Africa in July 2021 are a case in point. While there was certainly a political hand with nefarious agenda at play, if anything, the protests have highlighted how the politically disenfranchised and almost all materially poor have become a political market to be exploited for even treasonous of crimes. While the rent-a-crowd tactic is neither new nor unique to South Africa, what sets the #FreeZuma protests apart is the level of brazen display of military-grade artillery, use of brutal force, the ability to successfully attack strategic infrastructure and the general willingness to challenge the state’s authority and thereby setting a dangerous precedence to toy with anarchy and insurgence (Fereirra, 2021). A further distinguishing factor was that due to some of the protestors targeting and stealing necessities such as food and clothing, a sense of empathy accompanied the protest to the point of garnering legitimacy for theft of basic needs.

3.3

The Land Question and Reform

The land is the single most factor at the heart of development and economic growth. It is a productive asset that, due to South Africa’s sociohistorical past, many are marginalized. It is for this reason that it “. . . is an emotive and volatile issue (FirstGeneration Country Review Report, 2007: 276).” It is of no surprise, then, that the Report of the High Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change (2017: 202) confirmed that “. . .people are [justifiably] angry.” According to the First-Generation Country Review Report (2007: 276), by the end of 2004, the government had only managed to transfer no more than 4.3% of the commercial agricultural land; a far cry figure compared to the 30% commitment

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government had committed to would have transferred by 2014 in its Reconstruction and Development Program (RDP). The land question must be considered with the history of land dispossession, forced removals and displacements regulated by especially the notorious 1913 and later 1936 Land Acts in mind. Therefore, the feeling of injustice and the snail-pace of the land redistribution and restitution programmes continue to add to the array of perennial socioeconomic issues that continue to tilt South Africa towards implosions such as the triple-helix of unemployment, poverty and inequality (Classens, 2017: 201–204). It is worth noting that the land question in the South African context is not only a question of social and restorative justice but a constitutional imperative. Therefore, when people’s constitutionally guaranteed rights are not respected, this could lead to nationwide service delivery protests, with the potential to plunge the country into chaos—given the history of how destructive some of the protests could be. Destructive protests inevitably create an opportunistic time and space for criminal conduct such as theft and vandalism.

3.4

Racism and Xenophobia

Every post-conflict society is susceptible to hate and discriminatory practices. This is the case irrespective of how long a country had been transitioned into a new dispensation, often democratic and welcoming in principle. The USA, for example, has been a democracy for over 100 years and, yet, it still grapples with racism and xenophobia. Therefore, it would not be realistic to expect a country with less than 50 years of democracy, as is the case with South Africa, to have fully transitioned into democracy without any part of society still harbouring racist and xenophobic attitudes; especially when a decades-long legacy of a regime whose hallmark was discrimination in general, and racism, in particular, is still intact. According to the NPC (2011), racism is still a visible feature of South African society. Poverty, unemployment and inequalities compound it and therefore amplify its adverse impact. For example, according to the latest research (Saba, 2019; Commission for Employment Equity, 2019), white men still decisively dominate South Africa’s top-tier management. Further, research into productive assets and inequalities (Statistics SA, 2019) shows little change of historical land ownership patterns since 1994 in that whites, as a population group, still own a significant amount of such assets compared to their counterparts in the other population groups (Statistics SA, 2019: 52). As Shisana (2017: 84–106) observes, although South Africa has made strides since 1994, inequalities in their respective forms still take on a more racial character bequeathed by apartheid than any other character. Naturally, with widening inequalities in the face of economic decline and the accompanying unemployment, those who were prevented from equitably accessing productive assets and opportunities will look to those who were privileged by the successive governments under apartheid for redress and equity (Villa-Vicencio,

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1999: 199). However, while such is a logically understandable and morally justifiable expectation, in the face of economic decline and access to material prosperity, it will be met with resistance and retaliation as those with material privilege strive to retain that advantage. It is for this reason that racially motivated attacks and strife remain part of South Africa’s everyday life. The strife for opportunities and materials permeates the white-black divide and cuts deep into the national versus non-national divide. Economic hardships and political instability in many parts of the African continent and the general developing world have seen increased migration patterns to South Africa (AU, 2007: 286) and similar states that enjoy relative stability. Economic migration by foreign nationals in the search for a better life, especially when not effectively controlled due to porous borders, corrupt law enforcement officials, and poorly regulated labour market, sets the non-nationals in direct unfair competition with nationals in the informal economy and blue-collar often perilous entry-job market (African Centre for Migration & Society; Mail & Guardian, 2015; ACMS, 2017). While there are misconceptions (Mail & Guardian, 2015); nonetheless, this is a constant factor in the sporadic spade of xenophobic attacks. Xenophobic attacks in South Africa trigger retaliation in both South Africa and abroad. Naturally, this increases heightened risks for intrastate and state-to-state conflict. Following the 2019 violent xenophobic attacks on foreign truck drivers in South Africa (Human Rights Watch, 2019), for example, Nigerians targeted South African businesses in retaliation for xenophobic attacks in Nigeria (France 24, 2019). At home, a regular car accident between a taxi minibus and car of a foreign national business owner saw a confrontation grow from a brawl to taxi drivers exchanging gunfire with groups of foreign national business owners and destroying property in the process (Lawler, 2021). The violence of nationals versus non-nationals can easily escalate into xenophobic attacks.

3.5

Crime and Corruption

With the record-high levels of unemployment, poverty and inequalities exacerbated by the attendant declining economic opportunities and prospects of material prosperity, crime, in general, is inevitable. Crime has consistently been on the rise for a considerable period in South Africa. According to Statistics SA (2018), during the period 2016/17 and 2017/18: “Household crimes increased by 5% to a total of 1.5 million incidences of crime while individual crime also increased by 5% to a total of 1.6 million incidences, affecting 1.4 million individuals aged 16 and above.” During the same period under consideration, murder has seen an increase of 4% compared to the previous year. While crime, in general, is a pertinent issue that needs urgent attention, corruption is of particular concern. As per the Zondo Commission Inquiry into State Capture (2018–2021) revelations and National Planning Commission (2011) observations, corruption in South Africa is nearing systemic proportions and is already

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undermining state legitimacy and service delivery. With corruption, resources meant for the much-needed service delivery are redirected to private interests, often with at least a poorly service rendered, or worst, no service rendered at all. This has multifold ripple effects but two are of particular concern for peace and stability: the potential to spark nationwide service delivery-related protests, and erosion of institutional credibility of law enforcement agencies. According to Statistics South Africa (2018), the percentage of households who were satisfied with service delivery by the South African Police Service in their respective jurisdictions decreased from 57.3% in 2016/17 to 54.2% in 2017/18. A similar downswing trend was reported in the number of households who were satisfied with the way courts generally dealt with perpetrators from 44.9% in 2016/17 to 41.1% in 2017/18. While these statistics are largely based on perception, they nonetheless hint at a loss of public trust in crucial law enforcement agencies. When a state’s law enforcement agencies lose credibility and are ultimately not recognized by the populace, peace and stability within the state and externally cannot be guaranteed—an existential threat no state should find itself confronted with.

4 Positioning South Africa in the APRM Framework: Reflecting on the National Programme of Action The foregoing sections paint a murky picture: It is neither conspicuously clear that South Africa has significantly progressed from its initial progress in 2007 when the First-Generation Country Review Report was first compiled, nor could it be said unquestionably that the country is stagnant in the area of democracy and political governance. It is worth noting the objectives of the National Programme of Action that was put forth by South Africa in the applicable area following the country review then: • The human rights culture is strengthened nationally. • Racism is successfully combated, leading to the emergence of a truly non-racial society. • There are perceptible decreases in levels of crime and violence and in particular decreases in the levels of all forms of violence and crimes against women and children; and there are perceptible changes in the value systems of individuals and communities. • Access to justice is increased and improved. • Forums and mechanisms for social dialogue and participation in the provision and monitoring of public services are built and strengthened. • Decrease in levels of corruption and building national values and integrity in all three spheres of government and in all sectors of society. While South Africa’s Constitution (1996) still serves as the country’s supreme law and therefore guaranteeing stability at the higher abstract judiciary and political

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level of the regime, this may not necessarily practically guarantee stability on the ground. This is more so when considering the perilously high levels of unemployment, poverty and inequalities. Indeed, the commitment to protecting the constitutional democracy by government is commendable. However, the question ought to be frankly asked: Does South Africa perceive democracy as an end in its own, or a means to an end? That a growing number of people who remain poor and generally economically marginalized are questioning whether democracy should be protected and retained even when it is not yielding the democratic dividend they had hoped for since 1994 (Madonsela, 2021) suggests that democracy is a means to an end—the end being a non-sexist, non-racial prosperous South Africa wherein irrespective of colour or creed, everyone has equitable access to the constitutionally (1996) guaranteed rights and opportunities to lead a successful life to their full realizable potential. In light of the above, considering the unemployment, poverty, inequalities, crime, violence and corruption levels, South Africa is still relatively far from achieving its noble aspirations; yet it will be unjust to state that South Africa has reached a downward spiral of a failing state. It is against this observation that the murky emergent picture has been drawn and alluded to earlier. Short- to medium-term events such as how the country emerges from the COVID-19 impact, strategically important national developments such as the outcomes of the Zondo Commission, the rolling blackouts by ESKOM, and the next two election cycles that could chart a clearer trajectory—a trajectory that will decide the stability and peace prospects in South Africa and its role in advocating for and supporting their realization elsewhere.

5 Synthesis and the Future: Democracy, Peace and Stability That the emerging South African picture within the APRM Framework as far as democracy, peace and stability are concerned is murky is not the same as the picture is gloomy. Beyond semantics, this denotes that there are areas of best practices. Notably, South Africa has a comprehensive legal and regulatory framework through which to achieve and sustain peace and stability both in the country and abroad. The following Table 1 provides a list of such legal and regulatory frameworks for illustrative purposes. The establishment of the Zondo Commission of Inquiry and coordinated arrests of high-ranking officials by the security cluster illustrated an important turning point in an area of concern as per the NPC (2011) diagnostic report: fragmented and poorly coordinated law enforcement institutions. Improved coordination in the security cluster is key in quelling both internal and external potential threats to the country. Of all the considerations, any effective legitimate state should be able to protect its citizens. Be it as may, internally, there are emerging trends that South Africa should take note of and respond both decisively and timely to:

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Table 1 Examples of the regulatory frameworks for RSA on issues of crime, corruption, discrimination, and peace and security (self-designed for illustrative purposes on this publication) Frameworks signed/ratified RSA Constitution (1996)

Defence Act (2002)

Non-proliferation of Weapons of Mass Destruction Act (1993)

National Conventional Arms Control Act (2002)

National Strategic Intelligent Act (1994)

Ratified and observes the Protocol Relating to the Establishment of the Peace and Security Council (2002) of the African Union International Covenant on Civil and Political Rights Prevention and Combating of Hate Crimes and Hate Speech (2018)

Objectives To provide for the guarantee on the enshrined rights, and principles and values by which South Africa is (should be) governed. Thus, in the face of uncertainty in any legal question, the Constitution serves as the final framework To provide for the defence of the Republic of South Africa, and for matters connected therewith To provide for control over weapons of mass destruction; to establish a Council to control and manage matters relating to the proliferation of such weapons in the Republic of South Africa To establish the National Conventional Arms Control Committee to foster national and international confidence in the control procedures, adherence to treaties and ensure proper accountability in the trade in conventional arms To establish the National Intelligence Structures and their functions and provide for matters connected therewith. To collective security and early warning arrangement intended to facilitate timely and efficient responses to conflict and crisis situations in Africa To promote and protect the universal human rights of the global community To give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance, in accordance with international law obligations

Source: Compiled by the author

• Xenophobic attacks sporadically re-emerge, especially in both Gauteng and Kwa Zulu Natal provinces. • Extremist groups are reported to be actively recruiting in South Africa (Institute for Security Studies, 2021). • There were numerous reports of a massive cache of weapons found in different locations. Fears mount not only from the number of weapons but also from the fact that they are military grade that is for non-general issues (Caryn Dolley, (2021); SAPS, 2021).

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• Various reports suggest that South Africa is a haven for organized crime, from human trafficking rings, and drug peddling to cash-in-transit heights (Wiener, 2018). • Organized crime syndicates are beginning to adopt mafia or rebel-like modus operandi such as beheading and strapping bombs onto victims’ bodies—some of the common signatures moves by known extremist groupings (Dolley, 2021). • Deteriorating race relations continue to threaten peace and stability, especially where commercial farming communities share grazing land with non-commercial local farms and communities. Naturally, this polarizes communities and therefore has the potential to do long-lasting damage to peace and stability and reverse the gains of the social cohesion project (Phillips, 2016). Be it as may, South Africa enjoys institutional stability in the economic sector. Despite the notorious role of a few individuals in abetting state capture, South Africa’s regulation of the auditing profession remains solid. Firms and individuals that played an active role in allegedly abetting state capture have been identified and processes are in place to bring them to book. Both the South African Reserve Bank and the Johannesburg Securities Exchange remain credible and effective. However, as with the opening observation under this section, irrespective of how well the democratic South African government and key institutions are safeguarded at a higher strategic level, beneath the ground the country could reach the boiling point anytime and implode due to the level of unemployment, inequalities and poverty. South Africa remains a global role player in the promotion of peace, stability and prosperity. Internationally, South Africa consistently plays a role in preventing both interstate and intrastate conflicts. On the African continent, besides being a member state of the African Union as the continental body promoting peace and security through different means, it has actively played a role in various African countries gripped by conflict. These range from the SADC region, to North Africa with varying degrees of involvement. Globally, South Africa has served on the United Nations Security Council thrice, with its latest having served from 2019 to 2020. In its involvement in the global body promoting world peace, South Africa has successfully remained steadfast to its guiding principles: • Working for a just and peaceful world—Africa is the only continent not represented on the permanent seats of the United Nations Security Council. Further trade terms, which have a potential for conflict, must be just so that all parties benefit equitably. • Fostering a multinational approach to peace and security—No particular region or bloc can enjoy a lasting peace if others do not enjoy the same peace and stability. • Promotion and adoption of a proactive approach to maintenance of peace— Through joint forces, diplomacy mechanism and post-conflict reconstruction and development this could be achieved.

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• Enhancing the strategic partnership between UN and AU on, especially, peace and security. Chief among these is the funding of AU peace-keeping missions mandated by UNSC as per the 2008 resolution 1809 and 2012’s resolution 2023. • Perhaps a legacy of the birth of its democracy, advancing the promotion of multilateral positioning of the global order as opposed to regionalism.

6 Recommendations South Africa can certainly achieve more. The following are the recommendations by the panel: • Recommendation 1—mobilize all strategic stakeholders (business, NGOs and government agencies) to prioritize rebuilding the economy to the growth trajectory and decisively addressing inequalities. This requires political will and credibility—ingredients readily available at the disposal of the country as seen during the State Capture Commission. • Recommendation 2—improve service delivery effectiveness and efficiency. While it is necessary to rebuild the economy, service delivery needs to improve as most of the building blocks such as improved infrastructure base and maintenance as well as land redistribution depend on the quality of service delivery decisively. • Recommendation 3—While there is a complex myriad of issues that could potentially explain the levels of violence and crime, such as the national psyche and inclination to oppose a regime due to the apartheid regime had been an illegitimate inhumane regime that had had to be resisted and successive periods of conflicts pre-apartheid, efforts must be coordinated to drive a national dialogue and re-instilling of humane values such as ubuntu to mitigate especially violent crime. The spill-over benefits will further help South Africa fight racism and similar discriminatory practices undermining development efforts and nationbuilding. • Recommendation 4—South Africa needs to move past the hybrid weak (not yet a failed) state and consolidate its democracy. A multi-pronged intervention in promoting political tolerance and entrenching good governance ethos should be prioritized. Political tolerance is necessary to contain the growing extreme political entrepreneurship that preaches intolerance and makes unrealistic promises to a perilously desperate populace. However, promoting political tolerance without any efforts geared towards ensuring good governance will be futile. The electorate needs to still have at least a reasonable level of political trust in institutions and processes so that they can resist the temptation to resort to anarchy.

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7 Conclusion South Africa’s democracy remains intact. However, a myriad of factors emanate from unsustainably high levels of poverty, inequalities, unemployment, crime, racism and corruption in the face of a shrinking economy and widening social divisions. Left to deepen too long, these issues could lead to violent protests, complete loss of trust in state institutions and ultimately anarchy. However, South Africa still has an opportunity to redirect the country, albeit a short window of opportunity as the country is tinkering towards implosion.

Bibliography African Center for Migration & Society (ACMS). (2017). Fact sheet on foreign workers in South Africa: Overview based on statistics South Africa (2012–2017). Wits University. African Union (AU). (2007). APRM country review report and the national programme of action of the republic of South Africa.. African Union/Government Printers. Cachalia, C., & Schoeman, A. (2021). Are ISIS returnees a risk for South Africa? (Online). Retrieved April 13, 2021, from https://issafrica.org/amp/iss-today/are-isis-returnees-a-risk-forsouth-africa Caryn Dolley, C. (2021). Arms caches could be buried all over South Africa by freedom fighters and right-wingers [Online], Daily Maverick. Retrieved September 30, 2022 from, https://www. dailymaverick.co.za/article/2021-01-23-arms-caches-could-be-buried-all-over-sa-by-freedomfightersand-right-wingers/ Classens, A. (2017). Land reform – Restitution, redistribution and security of tenure. In Report of the high panel on the assessment of key legislation and the acceleration of fundamental change. Parliament of the Republic of South Africa. Connors, M. K. (1996). The eclipse of consociationalism in South Africa’s democratic transition. Democratization, 3(4), 420–434. Daniel, L. (2020). These crimes are surging in South Africa’s major cities. Business Insider (Online). Retrieved April 14, 2021, from https://www.businessinsider.co.za/these-crimes-aresurging-in-south-africas-major-cities-2020-11 Dept of Employment and Labour. (2019). 19th Commission for Employment Equity Annual Report. Government Printers. Dolley, C. (2021). Triple killing: Two men set alight and decapitated after suspected drug kingpin shot dead in Durban. Daily Maverick (Online). Retrieved April 13, 2021, from https://www. dailymaverick.co.za/article/2021-01-04-triple-killing-two-men-set-alight-and-decapitatedafter-suspected-drug-kingpin-shot-dead-in-durban/ Fereirra, E. Free Zuma Campaign demands arms deal case be halted. Mail & Guardian (Online). Retrieved July 16, 2021., from https://mg.co.za/news/2021-07-16-free-zuma-campaigndemands-arms-deal-case-be-halted/ Fox, M. A. (2014). Understanding peace: A comprehensive introduction. Routledge. Galtung, J. (1969). Violence, peace, and peace research. Journal of Peace Research, 3(6), 167–191. Lawler, L. (2021). ‘We are not at war’: Bheki Cele slams rifle brandishing men in wake of Gqeberha violence. IOL (Online). Retrieved October 14, 2021, from https://www.iol.co.za/news/southafrica/eastern-cape/we-are-not-at-war-bheki-cele-slams-rifle-brandishing-men-in-wake-ofgqeberha-violence-fdca7ffc-8226-44df-9c66-e7739f6d650e Madonsela, T. (2021). Thuli Madonsela: The majority of South Africans feel democracy is not working for them. Daily Maverick [Online]. Retrieved April 19, 2021, from https://www.

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dailymaverick.co.za/article/2021-04-18-thuli-madonsela-the-majority-of-south-africans-feeldemocracy-is-not-working-for-them/ National Planning Commission. (2011). Diagnostic Overview. Government Printers. Phillips, L. (2016). Land dispute possibly behind mass cattle poisoning. Farmers Weekly (Online). Retrieved April 17, 2021, from https://www.farmersweekly.co.za/agri-news/south-africa/landdispute-possibly-behind-mass-cattle-poisoning/ Picos, I. This man can start a mini war: Raid exposes arms cache. TimesLive (Online). Retrieved April 20, 2021., from https://www.timeslive.co.za/news/south-africa/2019-11-20-watch-thisman-can-start-a-mini-war-raid-exposes-arms-cache-dagga-lab Saba, A. (2019). White men still dominate SA management. Mail & Guardian [Online]. Retrieved April 18, 2021, from https://mg.co.za/article/2019-08-27-white-men-still-dominate-samanagement/ Shisan, O. (2017). Poverty, unemployment and the equitable distribution of wealth. In Report of the High Panel on the Assessment of Key Legislation and the Acceleration of Fundamental Change. Parliament of the Republic of South Africa. Sihlobo, W., & Kirsten, J. (2018). A compendium of essays on land reform in South Africa. Stellenbosch University. Southall, R. (2014). Democracy at risk? Politics and governance under the ANC. The Annals of the American Academy of Political and Social Science, 1(652), 48–69. South African Police Service. (2021). Large firearms and ammunition cache found, suspect arrested (Online). Retrieved April 17, 2021, from https://www.saps.gov.za/newsroom/msspeechdetail. php?nid=31458 Statistics South Africa. (2019). Governance, public safety and justice survey: GPSJS 2018/19. Statistics SA/Government Printers. Villa-Vicencio, C. (1999). Living in the wake of the truth and reconciliation commission: A retroactive reflection. African Journal Online (AJOL): Law, Democracy & Development, 3(2), 195–207. Villa-Vicencio, C. (2006). The TRC’s agenda of incomplete business. Focus, 43, 16–18. Wiener, M. (2018). World’s ‘most wanted’ expose SA as safe haven for criminals. News24 (Online). Retrieved from https://www.news24.com/news24/columnists/mandy_wiener/worldsmost-wanted-expose-sa-as-safe-haven-for-criminals-20181108

South Africa’s Political Commitment to the Promotion and Protection of the Rights of Vulnerable Groups Adeyemi S. Badewa

and Mulugeta F. Dinbabo

1 Introduction The Framework document of the New Partnership for Africa’s Development (NEPAD)—2002, and the African Union Charter on Democracy, Elections and Governance—2007, underscore the imperative of strengthening good governance and democratic structures as essential for inclusive development in Africa. This conception has been subjected to periodic evaluation by the African Peer Review Mechanism (APRM), a mutually agreed instrument of voluntary self-monitoring of governance policies and practices, launched in 2003 by the African Union (AU) member states (APRM, 2017). The four cardinal strategies of the APRM include democratic and political governance; economic governance and management; socio-economic governance; and corporate governance. Hence, the APRM’s strategy for deepening democratic and political governance in the continent is further premised on eight objectives, one of which is “the promotion and protection of the rights of vulnerable groups, including internally displaced persons, refugees and persons with disabilities” (APRM, 2017: 68). This objective embraces the principles of transparency, accountability, integrity, respect for human rights and promotion of the rule of law. It also appeals for regular reform of the legal and justice systems as a prerequisite for efficiency in public services, support for citizens’ participation and entrenchment of democratic governance processes (APRM, 2017). The promotion and protection of the rights of vulnerable groups is an internationally recognised principle. It underscores the need to design and implement policies and programmes of social inclusion. Delivery systems’ responses to the obstacles and challenges confronted by disadvantaged and vulnerable groups should

A. S. Badewa (*) · M. F. Dinbabo Institute for Social Development, University of the Western Cape, Cape Town, South Africa e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_6

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include protective measures to secure their lives and properties and combat discrimination and violence against them. A human rights-based approach to social protection requires that governments give special attention to these groups, guarantee non-discriminatory treatment and adopt proactive measures to enable those suffering from structural discrimination to enjoy their inalienable rights. Chapter 2 of the 1996 Constitution of South Africa—The Bill of Rights—provides for the protection of the civil, political and socio-economic rights of every person in South Africa. This includes rights to human dignity, equality, nonracialism and non-sexism, as well as the supremacy of the Constitution (Porter, 2018: 2). Despite constitutional guarantees, the rights of vulnerable and marginalised groups are far from being adequately protected in South Africa, amidst the persistence of structural violation and abuses. Given this concern, an assessment of the progress (or lack thereof) made by the Republic of South Africa in respect of the promotion and protection of the rights of vulnerable groups is undertaken. At the national and sub-national levels, affirmative actions and several proactive measures targeted at eliminating or reducing conditions that perpetuate discrimination and prejudice against them can, thus, be pondered. The objective, as encapsulated in the APRM framework, is to advance the existence and efficacy of the legal and institutional protection of the rights of vulnerable groups, including displaced persons, persecuted ethnic/religious minorities, persons with disabilities, refugees, asylum seekers and undocumented migrants. This is further explored along the following sub-sections: Appraisal of the Previous Report: emerging insights (policy, principle, and practice); Identification of Best Practices: challenges and opportunities; Recommendations for Policy Improvement; and Conclusion.

2 Appraisal of the Previous Report: Emerging Insights (Policy, Principle and Practice) The commitment of South Africa to the promotion and protection of the rights of vulnerable groups has been evaluated from the array of policies and programmes implemented towards inclusion, affirmative statements and awareness of this principle. Vulnerable groups, such as displaced persons, persecuted ethnic/religious minorities, persons with disabilities, refugees, asylum seekers and undocumented migrants, are confronted with several challenges. These include poor access to justice, violence, discrimination and lack of protective measures or security for lives, properties and livelihoods of vulnerable groups, among others. This reality persists despite South Africa’s signing or ratification of several international and regional codes and standards relevant to the protection of the rights of vulnerable populations (APRM South Africa, 2008). According to the Country SelfAssessment Report (CSAR), these standards and agreements include the following:

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(i) Charter of the United Nations (ratified in 1945). (ii) International Covenant on Civil and Political Rights (ratified in 1998). (iii) Optional Protocol to the International Covenant on Civil and Political Rights (acceded to in 2002). (iv) OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. (v) Protocol to the Africa Charter on Human and Peoples’ Rights (ACHPR) on the establishment of an African Court on Human and Peoples’ Rights (signed and adopted in 1998). (vi) Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (ratified in 1998). (vii) International Convention on the Elimination of All Forms of Racial Discrimination (ratified in 1998). (viii) Convention Relating to the Status of Refugees (acceded to in 1996). (ix) Grand Bay Mauritius Declaration and Plan of Action for the Promotion and Protection of Human Rights, 1999. (x) The Constitutive Act of the African Union (2000, ratified in 2001). (xi) The OAU Refugee Convention (1969, acceded to in 1995). (xii) The NEPAD Framework Document. (xiii) International Covenant on Economic, Social and Cultural Rights (ICESCR) (signed in 1995 and ratified on 12 January 2015). Similarly, national legislation and support programmes related to the promotion and protection of the rights of vulnerable groups in South Africa include, inter alia: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x)

The Criminal Procedure Act (Act No. 51 of 1977). The Criminal Law Amendment Act (Act No. 105 of 1997). The Immigration Act (Act No. 13 of 2002). The National Health Act (Act No. 61 of 2003). Basic Conditions of Employment Act (Act No. 75 of 1997) as amended in 2014. Protection from Harassment Act (Act No. 17 of 2011). The Criminal Law (Sexual Offences and Related Matters) Amendment Act (2007). The Child Justice Act (Act No. 75 of 2008). The Service Charter and Minimum Standards for Victims of Crime (2004). The National Policy Guidelines for Victim Empowerment (2009).

Notably, in April 2015, the South African government ratified the ICESCR, despite being a signatory since 3 October 1994. Such ratification provides new opportunities for government and citizens to dialogue and takes action to enhance the promotion, protection and actualisation of socio-economic and cultural rights in South Africa (Studies in Poverty and Inequality Institute (SPII), 2016: 3). The country is yet to ratify the International Convention on the Protection of Rights of All Migrant Workers and Members of their Families (ICRMW) despite being a major migrant-receiving country in Africa (Arukwe, 2019: 2). The same applies to

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the Optional Protocol to the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), as adopted by the UN General Assembly in 2002. South Africa ratified the principal Convention against Torture in 1998 but still has not signed the Optional Protocol. The emphasis on torture and other cruel, inhuman, or degrading treatment or punishment prohibited in the OPCAT includes places of detention such as police stations, pre-trial centres, security barriers and remand prisons. By extension, “degrading treatments meted against migrants across prisons for sentenced persons, juvenile centres, immigration centres, international transit zones, centres for detained asylum seekers, places of administrative detentions and psychiatric institutions” are instances of detention facilities where undocumented foreign migrants, children and asylum seekers are held, these fall under the jurisdiction of OPCAT (Van Der Burg, 2006: 90). OPCAT places on the state parties that have ratified the Protocol a duty to establish the national preventive mechanism(s) within a year of ratification. Thus, Parliamentary Committees, local Human Rights Commission, the Ombudsman or NGOs could function in this regard within their jurisdictions (Van Der Burg, 2006: 90). South Africa’s assent to these international standards and the formulated national legislation or support programmes have been remarkable. It is, however, disturbing that the affirmative statements have not been matched with implementation, particularly in respect of the promotion and protection of the rights of vulnerable and marginalised groups. Hence, aspects of the rights and aspirations of these groups have been dented, amidst persistent and structural violations, abuses and inefficiency in essential public services delivery, despite the constitutional guarantee. Despite these shortfalls, domestic statutes and Acts of Parliament in South Africa pride their commitments to international standards. The 1996 Constitution contains an expansive Bill of Rights that seeks to protect political, social and economic rights. Given the inadequacies in the domestication of these conventions and the implementation of national policies, awareness of these instruments impacts the ability of the citizenry, particularly the vulnerable groups to exercise their rights. Nevertheless, levels of awareness, education and political solutions, as well as government or stakeholders’ proactive measures towards protecting the rights of vulnerable citizens remain inadequate.

3 Challenges to the Rights of Vulnerable Groups in South Africa In South Africa, certain vulnerabilities, including disability, being immigrants, particularly asylum seekers, refugees and undocumented migrants, place enormous barriers in the way of accessing social security supports, including healthcare and other essential services. For instance, the South African Constitution guarantees “access to healthcare service” for everyone in the country, including migrants,

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refugees and asylum seekers. However, it obliges the “state to adopt reasonable legislative and other measures within its available resources, towards the progressive realisation of every aspect of these rights,” as encapsulated in Article 27(1) of the South African Constitution of 1996. This categorically emphasises that “no one may be refused emergency medical treatment” (IOM Southern Africa, 2009: 19). Similarly, the Department of Health and Human Rights activists have made a policy stance in favour of the inclusion of foreigners living in South Africa—permanent residents, asylum seekers, refugees and undocumented migrants in public health concerns. These include HIV prevention services, antiretroviral treatment (ART) for HIV infection and access to HIV testing services and public health facilities (APRM, 2017). Consequently, the National Department of Health (NDoH) maintains that “refugees and asylum seekers, with or without a permit, be granted access rights to public healthcare according to the current means test applicable to South African citizens” (IOM Southern Africa, 2009: 20). It also issued a directive in September 2007 stating that refugees and asylum seekers, with or without a permit, are eligible to equal access to antiretroviral treatment (ART) at all public health services. Nevertheless, the right to access healthcare services for all in South Africa has been subjected to scrutiny as the implemented actions often contradict the provisions of the Constitution or the government’s affirmative statements (IOM Southern Africa, 2009: 19). While the NDoH remains silent on other categories of migrants’ access to health services and ART, ambiguity persists within the public health system over non-citizens’ rights to access healthcare and emergency services generally, and antiretroviral treatment (ART) in particular, across South Africa. Research by the University of Witwatersrand’s Forced Migrations Studies Programme indicates that South Africa’s Public hospitals and clinics are not implementing the Department of Health’s directive on the non-discriminatory provision of ART to non-citizens. Instead, they continuously refer non-citizen patients to private health providers, thus implementing a dual healthcare system. The report also maintained that refugees and asylum seekers complain about their inability to access ART because they do not possess green, barcoded identity documents. Hence, referring foreigners, irrespective of their immigration status, out of the public health system to NGOs health providers to access ART, despite the NDoH directive, represents a violation of the law (IOM Southern Africa, 2009: 20). Moreover, South Africa’s Constitution upholds unprejudiced protection of the vulnerable population’s rights. The country was among the first to prohibit discrimination based on sexual orientation in the world, and to date, the only country in Africa to allow same-sex marriage. Nevertheless, its Constitution’s Equality Clause, which expressly guarantees individuals’ protection on the grounds of sexual orientation, does not explicitly allude to gender identity, particularly the promotion of the rights of gender non-conforming and non-binary people. While gender identity is only implied under the “gender” clause and related grounds, sexual orientation and gender identity remain conflated in South Africa (Porter, 2018). By implication, lesbian and gay people may be legally protected, and other queer demographics, for example, transgender, intersex and bisexual persons, are not specifically recognised.

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Furthermore, immigrant populations, particularly foreigners, refugees and asylum seekers from African countries, are part of the vulnerable minority groups in South Africa. These persons often experience discrimination, prejudice and physical violence including xenophobia and challenges in service delivery. Several reasons have been advanced for the eruption of xenophobic violence in South African communities where foreign nationals coexist with local populations. These range from suggestions about external manipulation through a “third force,” criminal instigation, fear and dislike of foreign Africans, to poverty and the competition for jobs and scarce resources in poor communities. Beginning with the May 2008 attack in Alexandra (a township of Johannesburg) in Gauteng province, violence spreads across areas around Johannesburg and to other provinces, including Kwazulu-Natal, Mpumalanga and Western Cape. Since 2008, more than 400 foreigners from African countries—immigrants, refugees and asylum seekers have been killed and more than 100,000 displaced in xenophobic attacks (APRM, 2013: 108). This embarrassing trend of xenophobic attitude accompanied by violence, arson, looting and killing constitutes an affront to South Africa’s moral conscience. While condemning the menace, the South African government and civil society have also adopted measures to tackle the root causes of xenophobia. The report of Parliament’s Task Team on “Probing Violence and Attacks on foreign nationals,” in pursuance of a National Assembly resolution, maintains that “xenophobic attitudes do exist among some South African citizens and could have been exploited to instigate violence and attacks on foreigners in volatile localities across the country (APRM, 2013: 108). The South African economy immensely profits from the scarce skills and socio-economic activities generated by migrants. Yet these minority groups have been viewed as the “unwanted others” and often blamed for socio-economic problems, including crime and unemployment, by some interests in the country” (Adedeji et al., 2019). The securitisation of migration and anti-migrant policies, as well as outsourcing of immigration processes, have exacerbated the migration crisis in Africa (African Union, 2018; International Organisation for Migration, 2018). Increasing restrictions, border control and poor handling of permit/visa processes, including corruption among government officials, have exacerbated the vulnerabilities of immigrant populations in South Africa. Securitisation is conceived as a process of social construction that pushes an issue of regular politics, such as asylum, into the arena of security (Ibrahim, 2005). To check the challenges of illegal migration to South Africa, some “illegal immigrants” are kept in custody after apprehension by the police at the Lindela Repatriation Centre. The facilities at Lindela, where they are kept while their cases are investigated until deportation, appear to be the standard in the government’s handling of the refugees and asylum seekers’ plights, particularly the irregular immigrants travelling through the land borders. Meanwhile, rights violations and lack of medical facilities have allegedly contributed to the deaths and illness of several detainees. In the same vein, several African immigrants in South Africa have been subjected to hardships and delays in visa/permit processes in recent years. These include, particularly since 2018, students and researchers and African investors, refugees and

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migrant workers, whose applications are often delayed indefinitely or unattended to by authorities at the Department of Home Affairs (DHA). For instance, since March 2020, due largely to the COVID-19 emergency lockdown, the DHA’s suspension of the processing of applications for temporary and permanent residence visas or citizenship has resulted in a huge backlog of applications. The country’s Home Affairs Minister, in the 30 June 2021 Government Gazette, stated that only from 1 January 2022 would the permanent residency applications again be considered, while appeals against previous permit decisions restart from October 2021 (Merten, 2021: 1). Thus, the stoppage of permanent residency applications for over 20 months represents a violation of the South African Immigration Act (No. 13 of 2002), as stipulated in (Paragraph (a) of the Preamble substituted by section 1 of Act 13/2011) that an “expeditious issuing of residence permits through simplified procedures based on predictable and reasonable criteria” by the government. Unfortunately, this trend left tens of thousands of immigrants vulnerable (33,700 by DHA’s figure), with dire consequences on their livelihoods, well-being and human rights (Merten, 2021: 2). Indeed, the delay or difficulties to obtain scarce skills, work and permanent residency permits have continued to escalate. Meanwhile, investors and industries find the process too lengthy, onerous and often ineffective in addressing their shortterm skills shortages. Hence, foreigners, who have invested in different ways, bought homes, saved in South African banks and employed citizens across domestic or local businesses, find it difficult to depend on the visa application processes to live ordinary, happy and secure lives in South Africa. Coincidentally, the DHA’s immigration services have missed out on six of ten targets, yet overspent by 101% of its R126 billion (Rand) allocation, as found by the South African Parliament’s research unit summary of performance for the final quarter of the 2020/21 financial year (Merten, 2021: 2). Interestingly, attributing the DHA’s overspending to expenses on meals at Lindela repatriation facility, and legal fees (Merten, 2021), prompts widespread dissatisfaction with the DHA, including concerns about the magnitude of corruption in the system. Endemic corruption in public institutions has increased the vulnerability of the vulnerable populations in South Africa. This has rolled back the visions of NEPAD and the APRM’s objectives of promoting the rights of these populations. For instance, officials of the government’s traffic department issuing a Driver’s Licence have perfected the means of collecting R3000 (Rand) bribes for scoring applicants partaking in driving tests in the process of obtaining a driver’s license. This precondition must be fulfilled after the applicant pays the statutory fees of R200 (Rand) for the driving test; otherwise, tests will not be approved irrespective of the applicant’s perfection in the driving test. This is pervasive in most of South Africa’s urban centres, particularly Cape Town and Johannesburg. The victims of this corrupt tendency are mostly foreigners, women and job seekers, particularly in their desperation to avoid a rescheduling test or losing out on their employment opportunities. This ugly trend escalates due to a lack of accountability by public servants, institutionalised assessment of their performance and mechanisms to scrutinise officials living above their means.

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4 Best Practices and Opportunities Given the above concerns relating to prejudice, discrimination, violence and poor service delivery against the vulnerable and marginalised populations in South Africa, some critical steps have been undertaken by the government. Civil societies, NGOs, the private sector and academia have been at the forefront of engaging the government to improve the human rights conditions of all citizens and address structural barriers that induce the vulnerability of these groups. Importantly, these include affirmative actions, awareness campaigns and mechanisms to tackle this menace or integrate the vulnerable groups into the mainstream of national development policies and priority programmes in South Africa. Towards improving peoples’ health, the South African National Health Act (NHA) protects and promotes the rights of vulnerable groups, including the provision of free health services at public health establishments (Health and Democracy, 2019: 286). Indeed, the National Health Act (NHA) has been strengthened to protect and promote the rights of vulnerable groups such as women, children, the old and people with disabilities. The Patients’ Rights Charter also makes provision for the special needs of vulnerable groups, including children, the aged, pregnant women, people with disabilities and people living with HIV/AIDS. The NHA also guarantees people living with disabilities access to free primary healthcare services. Those receiving disability grants—the poor, who are unable to work due to disabilities— are eligible for full government subsidisation of public hospital bills. This benefit also applies to those in receipt of pensions for the blind, single care grants for mental illness and care dependency grants (Health and Democracy, 2019: 280). Numerous initiatives have been taken by the government at all levels to improve access to the administration of justice in South Africa. As alluded to in the first APRM report, South Africa has earlier facilitated several initiatives in collaboration with communities across its nine provinces, leading to the establishment of branch courts and family court units (APRM South Africa, 2016). An improvement in this regard includes the use of Equality Courts. This has focused on the enforcement of the principles of equality in the Constitution, aimed at reversing the discriminatory access to justice necessitated by the apartheid legacy of entrenched racial and gender inequality. These strides have brought the judicial system nearer to people and communities for whom the ordinary justice system was often unaffordable, cumbersome and lengthy to pursue (APRM South Africa, 2016: 35). The 2017 APRM Base Review elicited the concern of bringing services and institutions of justice closer to the people, particularly the marginalised and vulnerable groups, in South Africa. It prioritised awareness campaigns, access to justice for the vulnerable groups and full guarantee of their human rights, including access to information on basic rights and institutions of justice (APRM South Africa, 2016: 35). Considerably, awareness campaigns, access to justice and information on human rights and institutions of justice, critical to protecting the human rights of the marginalised and vulnerable groups in South Africa, have been improved, despite some challenges.

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The Department of Justice and Constitutional Development (DoJCD) has facilitated a programme that extends the Equality Courts’ services to rural communities and townships. As of the last review, 23 additional Small Claims Courts were further established across the provinces. These enable people to institute civil claims (up to R12 000 in value) without the need for legal representation. Considerable efforts are also made to conduct criminal proceedings in indigenous languages. Again, the government’s “Know your Rights Campaign” demonstrates the South African government’s commitment to providing improved access to justice and increasing awareness in communities. However, the impact of these initiatives across the country remains minimal (APRM South Africa, 2016: 35). Visa liberalisation or ease of visa restrictions for African citizens is a continental objective articulated in the AU’s Agenda 2063 and the African Continental Free Trade Area (AfCFTA). Hence, South Africa, like other countries, has enforced visas or liberalised them for citizens of sister African states based on several interrelated and complex factors. These include visa liberalisation towards improved trade, investment and tourism, among other overall potential socio-economic benefits; or more visa restriction policies to deal with concerns related to security, irregular migration, and economic or political challenges (Warn & Abi, 2020). Similarly, South Africa has also established bi-national commissions with several African states to address issues of mutual importance. She has also committed, partly, to the visa-free travel and visa-on-arrival to nationals from some selected African countries in compliance with Regional Economic Communities (RECs) and other trading blocs’ resolutions such as the Southern African Development Community (SADC), Common Market for Eastern and Southern Africa (COMESA) and the AU. This commitment is a major step in fulfilling the purpose of the AfCFTA Agreement of 21 March 2018, and its complementing Protocol on Free Movement of Persons (in Africa) (Warn & Abi, 2020: 80). Notably, the 2018 Africa Visa Openness Index Report, of the African Development Bank (AfDB), recorded that African states’ entry access liberalisation and e-visa provisions for Africans increased from nine to sixteen, between 2016 and 2017 (Warn & Abi, 2020: 80). Hence, South Africa ranks among these countries, having eased visa restrictions for citizens of specific countries, including Kenya, Ghana and Cameroon among others. Moreover, as of the 2019/20 financial year, the Department of Home Affairs, in partnership with the United Nations High Commissioner for Refugees (UNHCR), took measures to eliminate delays and backlogs in decisions for asylum seekers in South Africa. This includes the efficient review of over 153,000 backlogs of appeal cases, establishing a robust asylum appeal management programme, training and equipment and technical support by the UNHCR (Charles, 2021). Similarly, Parliament’s Home Affairs Portfolio Committee has also intervened to repatriate undocumented immigrants back to their home countries. Such intervention has also carried out measures to reintegrate refugees into their host communities, including immigrants displaced by xenophobic violence in the affected areas. South Africa’s implementation of the National Programme of Action against xenophobia reflects the government’s purpose to tackle the challenges of violence against vulnerable populations, particularly immigrants, refugees and asylum

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seekers. The implications of xenophobic violence, for policymakers, civic groups and stakeholders in the recent past have informed the refinement of robust and thoroughly focused interventions. A major solution being implemented is a review and enhanced campaign by the South African Human Rights Commission (SAHRC) on “Rolling Back Xenophobia,” with an allocation of vital resources to this cause (APRM South Africa, 2008: 109). Several NGOs and civil societies, including religious organisations, are playing critical roles in maximising education and awareness to combat xenophobic tendencies and actions in South Africa. The Department of Arts and Culture hosted over 50 community dialogues during the reporting period, following xenophobic attacks across South African communities, towards combatting xenophobia and racism and promoting nation-building and social cohesion (APRM South Africa, 2008: 109). This initiative will remain successful if properly monitored as the progress made and avenues for improvement will be identified. Furthermore, consolidating democracy through strategic institutions to uphold democratic values along sustainable development roadmaps is critical to addressing the challenges of human vulnerabilities. Measures are underway since the establishment of the National Planning Commission in 2010. The National Development Plan’s (NDP) Vision 2030 as a national master plan enjoys widespread support due to its efforts in eradicating poverty and inequality and unlocking the country’s full developmental potential. The Department of Performance Monitoring and Evaluation and the National Treasury also facilitate the process of developing a 2014–2019 Medium Term Strategic Framework (MTSF) in South Africa (APRM South Africa, 2016: 36). However, integrating the NDP and the MTSF into the various mechanisms geared to addressing the vulnerabilities of immigrants, particularly asylum seekers, refugees and undocumented migrants, among others, is lacking. Notwithstanding the above, these strides have produced mixed results. These include the challenges of designing and implementing policies and programmes of social inclusion and addressing corruption emanating from inefficiencies in the public sector and systems decay.

5 Recommendations for Policy Improvement A significant factor of inclusiveness in South Africa includes the development of a comprehensive universal healthcare system at primary, secondary and tertiary levels, that is also sensitive to the general and specific healthcare needs of vulnerable groups, including people with disabilities. This should embrace measures aimed at eliminating discrimination against vulnerable groups in the health sector, with special consideration for women, children, people with disabilities and underresourced refugees and asylum seekers. Hence, national norms and minimum standards for the provision of health facilities should be guaranteed to ensure barrier-free access. To sustain the system, appropriate communication strategies at service delivery points that guarantee equal access for all are very crucial. This should

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include the development of training programmes for healthcare workers according to global best practices. Traditional leaders play a vital role in issues of heritage and culture in communities in South Africa. Several people have contact with both traditional leaders and public sector institutions. Hence, they play important roles in local governance and impact the lives of people living in their areas. This is especially crucial in areas with an overlapping system of governance, i.e. overlap and contradictions between institutions of traditional leadership and the three tiers of government. Given the complexities posed by such dualism, the democratic government process towards correcting the wrongs of the past, building trust and peace mechanism among diverse interests in South Africa can be leveraged (APRM South Africa, 2016: 36). The policy developed in this regard has not yet addressed any of the challenges confronting vulnerable and marginalised groups in South Africa. Nevertheless, strengthening the institution of traditional leadership, in line with the Constitution, deserves more attention when the country’s national programme of action is revised. Therefore, the democratisation and transformation of traditional authorities, aligned with the Constitution’s principles, will promote constructive relations between traditional leaders, government and the people. The APRM’s panel of experts and stakeholders have suggested that South Africa should further increase awareness and accessibility of various rights to the public, irrespective of nationality and social status. The awareness programme “Know Your Rights Campaign” identified in the National Programme of Action (NPOA) is a laudable initiative (APRM South Africa, 2016). However, the project needs to clearly define the actors to oversee it, allocate budgets and set implementation timeframes. In this manner, collaborations with civil societies, human rights organisations and traditional authorities will be constructive. Hence, the government’s condemnation should be more than reactionary in combatting violence and prejudice against foreigners and vulnerable populations. Proactive measures to promote domestic peace and security and strong condemnations for acts of violence against the vulnerable population should be taken. International organisations, universities, government agencies, research councils and NGOs should periodically review the studies on xenophobia in South Africa and prioritise capacities for early warning while strengthening interventions to enhance community peacebuilding initiatives. More importantly, ordinary South African citizens’ perspectives should be seriously considered, and their voices heard on the “immigrant’s question.” Hence, dialogues and workshops should be organised periodically to open the space for grassrootslevel discussions about the sources and solutions to xenophobia, and towards a co-formulated migration approach with a majority buy-in. Similarly, attacks on foreigners will fade out and re-integration will be sustained when governments satisfactorily address the grievances and socio-economic concerns of the local population. Against the backdrop of human rights abuses arising from the detention of undocumented foreigners, de-securitising migration practices in South Africa is long overdue. Given the apparent protection that OPCAT could provide and its pure oversight measure over detention facilities, critical efforts should be made to

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ensure that South Africa ratifies and implements the Optional Protocol. This is important because OPCAT empowers the creation of national preventive mechanisms, within a year of ratification, in all state parties who have ratified the protocol. Its mechanism also facilitates dialogue and oversight by a subcommittee consisting of independent and multi-disciplinary experts. Hence, parliamentary committees, the local human rights commission, the Ombudsman or NGOs can perform these duties within their respective jurisdictions (Van Der Burg, 2006: 91). They can also evaluate the situation in detentions upon visitation and make recommendations for improving the treatment of detainees, including children and trafficked persons. The OPCAT framework would address some of the concerns about the Lindela Repatriation Centre, and South African Prisons, the high-handedness of security officials, corruption and organised crimes peculiar to the immigration crisis in South Africa. A recurring decimal in the governance landscape in South Africa since 1994, according to the country’s National Development Plan (NDP) 2030, is “the irregularity in the capacity that enhances even performance in the public service” (2012: 15). The factors responsible for this, according to the NDP, include tensions in the political-administrative interface, skills deficits, instability of administrative leadership, inadequate state capacities in reproducing requisite skills, low staff morale and weaknesses in organisational design (APRM South Africa, 2013: 28). In addition, other causal factors are necessitated by the inadequacies in the culture of continuous improvement, accountability and attention to operational management, the NDP maintained. Despite the prevailing performance management systems, a sufficiently uncompromising system of consequences against poor performance is needed. This effort requires the necessity to adjust the public sector’s operations towards a culture of greater accountability, associated reward for excellence and effective sanctions against poor performance and unethical conduct. There is a need for cooperative governance, which requires attention in the review of South Africa’s new programme of action. Coordination and collaboration among various spheres of government require adequate legislation to provide a guiding framework, as the challenges of managing concurrent functions amplify the calls for a review of the constitutional responsibilities of different spheres of government. A report of the APRM South Africa (2016: 37) noted thus, “the lack of coordination among spheres of government, poor feedback mechanisms to communities, backlogs and unevenness in the quality of services delivery contribute to deep-seated dissatisfaction in communities, as evidenced by the rise in service delivery protests.” Consequently, the public participation mechanisms and processes, currently adopted in South Africa, need a re-evaluation, while service delivery systems are overhauled to promote inclusiveness and support for vulnerable groups. While sustaining these, the NDP 2030 should be effectively monitored, evaluated, and improved upon based on the implementation of the provisions of the AU Agenda 2063—“Africa We Want” and the (UN) Sustainable Development Goals (SDGs).

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6 Conclusion South Africa is a leading figure in the African Union project. Its strategic importance and exemplary leadership are critical to promoting African continental initiatives, including NEPAD and its instrument for good governance and socio-economic development—APRM, which are both headquartered in South Africa. The APRM’s opportunity for civil society engagement, stakeholders’ assessments and public dialogue on the governance process has prompted multiple conversations about accountability. Hence, the APRM and NEPAD impacts would remain insignificant without dialogue about inclusiveness and improvement of the rights of vulnerable groups in South Africa. Therefore, this chapter’s assessment of South Africa’s progress in the protection of the rights of vulnerable groups maintains that efforts on this objective have produced mixed outcomes at all levels. On the positive end, the Bill of Rights in the country’s 1996 Constitution guarantees the protection of the civil, political and socio-economic rights of all people in South Africa, including the rights to human dignity, equality, nonracialism and non-sexism. Realising the importance of promoting these rights, South Africa has made obligations through a commitment to international standards, and the capacity to strengthen national policies, institutions and practices along this objective. In addition, considerable improvements have been made through affirmative actions, awareness and support for peace, justice and health for all, especially the vulnerable and marginalised groups. These include campaigns against xenophobic violence, discriminatory practices and selective visa liberalisation concessions to Africans from specific countries, in her commitment to the AU’s Agenda 2063 and AfCFTA. The challenges to the rights of vulnerable groups have been exacerbated by structural problems in South Africa. These emanate from the lack of inclusion in the formulation and implementation of national development priorities, inefficiency in the public and service delivery systems, and corruption. Consequently, the above inadequacies highlight the need for cooperative governance and socio-economic inclusion towards integrating concerns of vulnerable and marginalised groups into national development goals. Similarly, mechanisms for efficient service delivery in the public sector, de-securitisation of migration and improved visa liberalisation policies should also be prioritised. These can be accelerated through agenda setting, stakeholders’ collaboration and defined roles of actors, and budgetary allocation as well as periodic evaluation of the processes towards sustainable outcomes.

References Adedeji, A., Badewa, A., & Olafeso, O. (2019). Social war or cultural slur? Xenophobic violence and post-apartheid governance in South Africa. Nigerian Forum (The Nigerian Institute of International Affairs), 40(12), 614–627. African Peer Review Mechanism. (2017). Annual report. Retrieved from www.nepad.org/aprm

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APRM South Africa. (2008). APRM country review and the National Programme of action of the Republic of South Africa. APRM South Africa. (2013). Third report on the implementation of South Africa’s APRM Programme of action - broadening public participation. APRM South Africa. (2016). APRM close-out and review report South Africa. Johannesburg. Arukwe, C. N. (2019). Implications of a potential ratification of the international convention on the protection of the rights of all migrant workers and their families by South Africa. University of Pretoria. AU. (2018). Migration policy framework for Africa and plan of action (2018–2030). African Union Commission. Retrieved from https://au.int/en/documents/20181206/migration-policy-frame work-africa-mpfa Charles, M. (2021). Home Affairs signs deal with UN refugee agency to deal with asylum seekers backlog, News24.com. Retrieved March 28, 2021, from https://www.news24.com/news24/ southafrica/news/home-affairs-signs-deal-with-un-refugee-agency-to-deal-with-asylumseekers-backlog-20210322 Health and Democracy. (2019). The rights of vulnerable groups to health Care in South Africa. Ibrahim, M. (2005). The securitization of migration: A racial discourse. International Migration, 43(5), 163–187. https://doi.org/10.1111/j.1468-2435.2005.00345.x International Organisation for Migration. (2018). World migration report 2018. International organisation for Migration. https://doi.org/10.18356/f45862f3-en IOM Southern Africa. (2009). Migrants’ right to health in southern Africa. International Organisation for Migration. Retrieved from https://publications.iom.int/books/migrants-right-healthsouthern-africa Merten, M. (2021, 26 August). Home affairs, where permanent residency applications go to gather dust in Covid-19 state of disaster. Daily Maverick, 1–6. Retrieved from https://www. dailymaverick.co.za/article/2021-08-26-home-affairs-where-permanent-residency-applicationsgo-to-gather-dust-in-covid-19-state-of-disaster/ Porter, A. (2018). The rights of vulnerable and marginalised groups in South Africa (pp. 11–15). Centre for Conflict Resolution. Available at: http://www.jstor.org/stable/resrep05159.5 Studies in Poverty and Inequality Institute (SPII). (2016). International covenant on economic social and cultural rights (ICESCR) gap analysis report and performance monitoring framework’, (November) (pp. 1–92). Van Der Burg, A. (2006). Legal protection of undocumented foreign migrant children in South Africa: Reality or myth? Law, Democracy & Development, 10(2), 82–100. Warn, E., & Abi, S. (2020). Reorganising borders in the age of free movement in Africa. In A. Adepoju, C. Fumagalli, & N. Nyabola (Eds.), Africa migration report: Challenging the narrative (pp. 76–88). Addis Ababa.

Evaluating the Rights of Children and Young People in Africa: The Policies and Practices in South Africa Evans S. Boadu

and Friday Alaji

1 Introduction This chapter discussed the gaps that exist in laudable governmental policies and legislations vis-à-vis the partial or non-implementations of the evaluation of the rights of children and young people in Africa; by paying close attention to the policies and practices in South Africa. Despite the numerous policies, legislation, and institutions aimed at protecting and promoting children and young people’s rights, extensive studies have shown that children remain powerless and are sometimes abused in many ways by those who are to protect them (Bell, 2002; Breen et al., 2015; Gwandure & Mayekiso, 2011). Thus, children and young people are some of the vulnerable groups of people with limited or no voice to influence and change the status in society (Bell, 2002; Cairns & Brannen, 2005). Nonetheless, the United Nations Convention of the Rights of the Child in 1989 paved the way for protecting and promoting the rights of children and young persons. Thus, they have become the focus of many demodectic and international laws and legislation that perceived them as the future and need to be nurtured and protected against any threat and suppression (Bell, 2002; Carletti, 2020). The African Union Charter on the Rights and Welfare of the Child was adopted in 1990 to make the rights and freedom of the African child non-negotiable. The rights of children and young people have since been a policy issue in most African

E. S. Boadu (*) Institute for Post-School Studies (IPSS) and School of Public Health (SoPH), University of the Western Cape, Cape Town, South Africa e-mail: [email protected] F. Alaji School of Government, University of the Western Cape, Cape Town, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_7

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countries, including South Africa. However, the ladder from childhood to adulthood comes with varying social, political, and economic rights coupled with its challenges (Kayizzi-Mugerwa, 2019; Masa et al., 2020; Muchemwa, 2019). Children and young people occupy a very vague status in society (Masa et al., 2020; Muchemwa, 2019). They are perceived to be innocent, vulnerable, and need protection, yet are sometimes deemed to be a dangerous and timebomb population that needs to be restricted, controlled, and suppressed. It is not surprising, therefore, that there is such ambiguity about legislation, protocols, and conventions governing the affairs of young people. Despite these pieces of legislation, the abuse of children and young peoples are rampant in most countries in Africa. However, there are some slight variations among the countries. While there are several legislations tilted toward the promotion and protection of children and young people in South Africa including the 1996 Constitution, Children’s Act 38 of 2005, Refugees Act 130 of 1998/Immigration Act 13 of 2002, and the Social Assistance Act 13 of 2004, yet there are several children and young people who are victims of cases of human rights abuse. Nelson Mandela in his inaugural address during the launch of the Nelson Mandela Children’s Fund, Pretoria in 1985 said, “There can be no keener revelation of a society’s soul than how it treats its children” (Mandela, 1995). The critical question is how do children and young people cope and thrive despite the negative experiences they are exposed to? Thus, this chapter unraveled the legislation, policies, and institutions and how they have otherwise protected and promoted children and young people’s rights in South Africa.

2 Policy Review of Children and Young People’s Rights in Africa The African Union (AU) endorsed the African Charter on the Rights and Welfare of the Child (the Charter) on July 11, 1990, and it went into effect on November 29, 1999. This Charter is the second but first binding instrument regionally that recognizes a child as the owner of certain rights and allows the child to exercise such rights in judicial or administrative processes (Mezmure, 2020). The Charter, as a regional human rights document, is expected to situate the discussion of children’s rights within the African context. Since the passage of the Charter 32 years ago, Africa has undergone numerous transformations. The child demographics of the African continent are distinctive. This is because African children are more important to the future of the continent when compared to others (Mezmure, 2020). Most importantly, children constitute 47% of the African population (UNICEF, 2017b Generation 2030: Africa 2.0.). By 2050, the continent’s population is expected to account for 42% of all global births and nearly 40% of all children under the age of 18 (UNICEF, 2017a). Therefore, investing in education and health systems remains the most vital means for making the most of the demographic benefit and creating an

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Africa that recognizes children’s rights. Increasing urbanization, globalization, and the dynamic socio-cultural environment must all be acknowledged as part of the changing scenario (UNICEF, 2020), which often erodes social safety nets and increases vulnerabilities, especially for children. However, the continental adoption of the Convention of the Rights of the Child (CRC) has been slower than that of its international counterpart. At the onset, the CRC came into being with 15 AU members (Sloth-Nielsen & Mezmur, 2007). Furthermore, all African countries except six (6) ratified the African Children’s Charter as of 2020. The six countries are Morocco, Tunisia the Democratic Republic of the Congo, the Sahrawi Arab Democratic Republic, Somalia, and South Sudan (Mezmure, 2020). The African Committee is in charge of overseeing the implementation of the African Children’s Charter (Article 32 of the Charter). Furthermore, to tackle child rights breaches at the regional level, member states will need to work together more closely. This would necessitate deliberate, systematic, and targeted action. This development necessitates the participation of regional economic communities and other regional organizations in the protection of children’s rights. It means they must develop protocols and/or policies to guarantee that member nations’ responses to abuses of children’s rights are consistent. In light of this, the Economic Community of West African States (ECOWAS) developed a Strategic Response and Mobilization Framework for Child Protection Systems, as well as an ECOWAS Child Policy in 2009, which complements the CRC and the African Children’s Charter (Amusan, 2018). The Middle Eastern and North African (MENA) countries including Algerian and Libya have rectified the Arab Charter on Human Rights (ACHR) which was espoused by the Council of the League of Arab States in 2004 (Arab Charter on Human Rights, 2004). This is also in line with the principles embedded in the UN Charter on human rights (Universal Declaration of Human Rights), International Covenants on Human Rights and the Cairo Declaration on Human Rights in Islam. Despite these conventions and charters, there is a high prevalence of violence against children (VAC) in MENA which is mainly associated with harmful socio-cultural practices such as child marriage, female genital mutilation (FGM) child corporal discipline, sexual violence, and gender-based violence (UNICEF, 2017a). The East African Community (EAC) adopted a child rights policy in 2016, with the goal of “establishing and strengthening current inter-country cooperation on the promotion of child rights, child safety, and child well-being,”. Also, in South Africa, Child rights civil society is lobbying the Southern African Development Community (SADC) to draft a SADC Protocol for Children, led by the Child Rights Network for Southern Africa (CRNSA) (Chibwana, 2021). The role of regional economic communities as duty-bearers for the protection and fulfillment of rights is becoming more apparent. For the protection of rights in various regions, it is critical that the child’s rights sector deliberately engages with these responsibility bearers.

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Children’s Rights and Institutional Reforms in Africa

The extent to which the Charter’s tenets have progressively been incorporated into national legal systems and frameworks in Africa has been determined by numerous factors. Be that as it may, the constitutions, comprehensive child rights legislation and thematic laws have all been used as instruments to achieve such inclusion and interweave the Charter with national laws. The constitutional adoption of children’s rights throughout Africa, as well as the incorporation of the Charter’s specific parts, is progressing well (Child Rights Now, 2019). A glance at some of the continent’s most recent constitutions, for instance, countries that got their Constitutions approved in the year 2010 (the continent’s fourth wave of constitution-making) could serve as a suitable case. In this regard, the constitutions of Angola (2010), Kenya (2010), Madagascar, Somalia, Zimbabwe (2013), and Tunisia (2014) are good examples of the aforementioned (Child Rights Now, 2019). Nonetheless, due to the widespread economic poverty in Africa and the low level of generated tax revenue of States, achieving child’s rights in the future is already challenged (Child Rights Now, 2019: 40). The integration of children’s rights in the constitutions of African states, as the Charter envisioned, could help in impacting legislative reforms, as in the case of Ghana, Ethiopia, and South Africa; and policies, as in the case of The Gambia, Ghana, Nigeria, and Uganda as well (UNICEF, 2008). Consequently, those constitutional amendments in federal-state constitutions play a critical role in rectifying any ambiguities therein. In other cases, such as in Lesotho, Liberia, Rwanda, Sierra Leone, and South Africa, the Charter is cited as a source of inspiration for new legislation. Most legislations include provisions relating to the Charter’s added-value categories (UNICEF, 2020).

3 Legislative Frameworks on Children and Young people’s Rights in South Africa South Africa’s current population is projected to be about 60 million people with children constituting about 21 million (35%) (Statistics South Africa, 2022). The rights of these children who are the future leaders of the country cannot be ignored. Besides, social justice for young people is equally relevant. Indeed, it is essential to have an introspection into the child’s rights in South Africa as this would enable the understanding of the contemporary issues of children’s and young people’s rights after the promulgation of the 1996 constitution.

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Children’s Rights in Apartheid South Africa

Prior to 1994, children and young people in South Africa almost have no rights (IDAF, 1988). They were disadvantaged socially, politically, and economically during the Apartheid era (Richard, 1989). Children were ill-treated, arrested, whipped, tortured, and kept behind bars for their involvement in protests against the cruel suppression that characterized the regime. Several children, especially the black majority, were victims of gross human rights abuses during this era; however, accurate data for this are scanty, (Richard, 1989) argued that: the apartheid regime in South Africa. . . embarked on a deliberate campaign of repression directed at African township children. . . between 1984 and 1986 that 312 children were shot dead by the police, another 1,000 or so wounded, an additional 11,000 detained without trial and almost invariably tortured. . .

The regime deprived the majority of these children and young people of their needed social, political, and legal assistance (Richard, 1989), . . .18,000 more arrested on charges arising from political activities, and 173,000 held in police cells supposedly awaiting trials. Although the notion of a child extends until the age of 18, many of the South African children targeted by the police were far younger, frequently as young as 11 and even younger on occasion.

Given the prevailing cruelty during the apartheid era, some community-based and Not-for-Profit Organizations (NGOs) took charge of programs to advocate and promote the right of vulnerable children in South Africa. Despite their efforts being met with enormous financial and material resources as well as other constraints, these NGOs and community-based organizations (CBOs) pressed on till the break of the 1990s (Mabusela, 2000). They contributed immensely to the crusade and advancement of children’s and young people’s rights in South Africa. The country’s brutal repression of children was the catalyst for the entrenchment of several domestic and international organizations such as the National Committee on the Rights of the Child (NCRC) and UNICEF’s call for the protection and promotion of children and young people just before South African transitioned to a constitutional democracy.

3.2

Post-Apartheid South Africa and Children’s Rights

Post-apartheid South Africa has witnessed promulgations of legislation and policies to protect and promote children and young people including children of illegal migrants. Besides, several state institutions and advocacy groups have also sprung up since the 1990s to ensure the enforcement of policies and laws to the benefit of children and young people. Nevertheless, it remains contentious among government institutions, advocacy groups, and other NGOs with regard to how a better quality of

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life could be achieved for children and young people in the face of other socioeconomic challenges and inequality problems in the country. South Africa is no exception in protecting and promoting children’s and young people’s rights, as is the case in every other country. And as such requires several social, political and economic legislations, policies and intervention programs in this regard. These policies and legislation equally demand a lot of financial resources and other support from the government, individuals, and civil society, yet, they are most difficult to come by and tend to render them impractical. However, the promulgation of the Convention of the Rights of the Child (CRC) in 1990, South Africa is a party to this convention (with other 194 member states) which enjoined member countries to enact laws, established institutions and agencies to ensure that the rights of children and young people are protected and promoted accordingly.

3.2.1

Overview of Policies, Legislation, and Institutions Dealing with Children’s and Young People’s Rights in SA

This research observed that the national children’s and young people’s rights are entrenched in regional and global conventions, as well as charters focusing on promoting and protecting children’s and young people’s rights. The conventions, legislation, and policies were categorized into three geographical levels (see Fig. 1). The reason is that the interest of this chapter is within the purview of policies, laws, and institutions protecting and promoting children’s and young people’s rights in Africa with special reference to South Africa. Policies and conventions induced by regional organizations such as the African Union were briefly contextualized and presented accordingly in the previous section. These regional policies and charters were included to better understand the broader issue of children’s and young people’s rights which national policy discourse in South Africa centers around. Consequently, all the conventions, policies, and legislations identified in Fig. 1 are either directly or indirectly associated with the promotion and protection of children’s and young people’s rights (e.g., the Children’s Act 38 of 2005 and National Youth Policy 2015&2020), as well as the general social-economic advancement of children and young people.

3.2.2

Status and Policies of Children and Young People’s Rights in South Africa, 1996

It is worth stating that several legislation and policies promote and protect children’s and young people’s rights in South Africa, as they are briefly discussed in the next sections. Nonetheless, they will be referred to in the synthesis sections in the later chapters as well. This includes but is not limited to the South African 1996 Constitution, Programme of Action for Children 1998, National Integrated Early Childhood Development Policy, Social Assistance Act 13 of 2004, the Refugees Act 1301998, Child Justice Act 75 of 2008, Social Assistance Act 13 of 2004,

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United Nations Convention on the Rights of the Child

Global United Nations (UN) Children's Fund (UNICEF) Sustainable Development Goals (SDGs) United Nations Convention against Transnational Organized Crime

African Union (AU) Charter on the Rights and Welfare of the Child

Regional

African Union (AU) Youth Charter 2009 AU, Africa’s Agenda for Children 2040 AU Refugees Convention of 1969

Child care and protective legislation South Africa1996 Constitution and the Bill of Rights

National Children’s Third Amendment Bill (B18-2020) Children’s Act 38 of 2005 Child Care Act of 1996

Children and young development National Youth Development Agency Act 54 of 2008

National Integrated Early Childhood Development Policy

National Adolescent and Youth Health Policy 2016-2020

National Youth Policy (2015 &2020)

Social protection and justice Prevention and Combating of Trafficking in Persons Act 7 of 2013 Prevention of and Treatment for Substance Abuse Act 70 of 2008 Social Assistance Act 13 of 2004 Child Justice Act 75 of 2008

Protection of undocumented migrant/refugee children SA- The Refugees Act 130 1998 Immigration Act 13 of 2002

Legend Green lines: legislations relation to children and young people of undocumented parents. Blue lines: Legislations and policies relate to children and young people social and legal and economic justice. Black lines: Policies, laws and conventions relating to child’s care and young people social interventions and development. Grey lines: Policies and legislations adolescent’s health and protection. Orange lines: Laws and policies relating to the financial and material welfare of the Child

Fig. 1 Legislation with policies related to children and young people’s rights in SA. Source: Constructed by the authors from several global, regional and national legislation and other policies protecting and promoting children’s and young people’s rights

Immigration Act 13 of 2002 among others (see Fig. 1). These policies and programs implemented by the government are some of the main strategies adduced to complement directly the laws protecting the rights of children and young people in South Africa. The statutes and policies with direct or indirect bearing on children and young people’s rights are briefly discussed in this synthesis section of the chapter.

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Childcare and Protective Legislation

The 1996 South African Constitution is the apex law, and all other legislation and policies are aligned and derived their authority from the constitution. Children’s Act 38 of 2005, Child Care Act 1996, and the current amendment bill; Children’s Third Amendment Bill (B18–2020) were enacted to care for and protect the rights of children in the country. Besides, young people and children have several constitutional rights as entrenched in Section 28 in the Bill of Rights in the Constitution of South Africa that are delineated in the 1996 Constitution including the right to education, parental care or alternative care, basic healthcare, basic nutrition, shelter, and other social services. Before the promulgation of the constitution, children were exposed to substandard education, inadequate healthcare, poor shelter, and uneven and racially biased social services (Robinson, 2017). Nevertheless, the constitution has created an enabling social system that encourages and harnesses the potential of children’s and young people’s rights. The Constitution states that ‘everyone’, children inclusive, has the right to basic education and other social services. In addition, the right to upscale education is embedded in the subsequent implementation of other policies, although it is the state of South Africa’s sole responsibility in terms of making available facilities, services, and support for the final actualization of these rights. Thus, the South African Human Rights Commission in partnership with international organizations such as UNICEF and government institutions like the Department of Basic Education is ensuring that through the Charter of Children’s Basic Education Rights, the constitutional provisions on children’s right to education are actualized in South Africa. The promulgation of the 1996 Constitution ushered in a true process toward freedom and democracy (Tshepo et al., 1998) which includes the protection and promotion of children’s rights. The post-apartheid arrangement set up systems and institutions to take the country on a different path where social, political, and legal rights are respected in the “new South Africa” including children and young people’s rights. The Constitution carved out a new society based on human dignity, freedom, and equality of opportunity (RSA, 1996) and rightly outlined in Section 28 of the 1996 Constitution, clearly emphasizing the rights of children and young people. The idea of the transformative constitution coupled with the various indirect policies and programs specifically for children and young people is ground-breaking compared to the country’s past hostile relationship between the state and children (especially, with most black children who were victimized during the apartheid era).

3.2.4

Social Protection and Legal Identity

Every child has the right to basic nutrition, shelter, and social services among others as expressed in Section 281 of the 1996 Constitution of South Africa. The constitution again prescribed other rights of the child including the socio-economic right, the right to be protected from all forms of maltreatment, neglect, abuse, or

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degradation, economic rights, and the right of the child as it relates to the administration of justice. The Social Assistance Act 13 of 2004 was enacted to practically assist individuals through the State by providing social support where possible. The notion of social security which could also be induced from the 1996 Constitution is the premise upon which some of these acts were passed, for instance, the Prevention and Combating of Trafficking in Persons Act 7 of 2013, Child Support Grant, and Prevention of and Treatment for Substance Abuse Act 70 of 2008. While there are several socio-economic rights in general, the right to basic nutrition, shelter, basic health care, and social services are specifically for children in South Africa as they are enshrined in various parliamentary acts. The aforementioned rights, coupled with others such as parental/alternative care rights, bring to the fore the importance of the family/parents and alternative care in meeting the various social rights need of children and young people in South Africa. However, addiction, illiteracy, poverty, and unemployment among others have led to the abuse of children even in their homes (Robinson, 2017). Thus, there is a need for both the State and citizenry to promote and protect children and young people from various social ills in societies. The 1996 Constitution, coupled with other legislative frameworks, such as the Children’s Act 38 of 2005, Child Care Act of 1996, and Child Justice Act 75 of 2008, professes some personal rights of the South African child which includes but is not limited to the regulation of the powers of the children’s courts, medical treatment, nutrition, maintenance just to mention few. The legal rights establish a child’s legal identity at birth which grants the child the opportunity to exercise their franchise at the appropriate age and enjoy healthcare, and education opportunities among others. Every child has the right to family or parental care or a suitable option when the child is not within his or her family and the Child Care Act of 1996 with its various amendments and subsequent acts such as the Children’s Act 38 of 2005 recognized this basic right. The Constitution states that the right of the child to family care would be more valued if the means of livelihood is necessitated for the protection of these rights. Again, the 1996 Constitution coupled with other legislative instruments and acts listed above in Fig. 1 is to correct some of the injustices emitted against children and young people in society at large. The question is, how many legislations, acts, policies and constitutional procedures are enough to correct the injustices committed against children and young people? Robinson (2017) indicates that “the right to family care or parental care requires the family or parents of a child, or the State, to provide care to that child. By using the word ‘care’, the Constitution radically deviates from the notion of parental ‘authority’ of the common law.” The addition of the word ‘care’ automatically means the child is susceptible and needs protection (Robinson, 2017). Thus, the parent–child relationship should be clearly defined based on the indebtedness (not favor) of the parents to the child through the State to assist the child to overcome his or her vulnerability.

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Child Justice Statutes and Protection of Children from Exploitative Practices

Children in South Africa have the rights in the administration of justice as enshrined in the Child Justice Act 75 of 2008 backed by the 1996 Constitution. Every child has the exclusive right not to be kept behind bars except for an extreme case and as the last option. However, sub-section 12 and 35 of the right of the child does not permit the child to be kept behind bars longer than the shortest possible time. It also allows the child to be kept separately from other detainees over 18 years and be handled and treated considering his or her age. All child’s rights include that of having a legal practitioner, paid by the government, but attach to the child in case of a legal matter concerning the child as supported by the Child Justice Act 75 of 2008. This right eventually applies to both the children and adult populations. Furthermore, the Child Care Act (1996) also stressed the provision of legal practitioners, if it is in the best interest of the child in case of civil litigation. Constitutionally, children are not required or permitted to perform work or provide services-related duties that are inappropriate for a person, and which place them at risk as stated in Section 28(1) of the 1996 Constitution. Indirectly, the Prevention and Combating of Trafficking in Persons Act 7 of 2013 are linked to the UN combat of trafficked persons with particular attention to children. Regrettably, child labor is on the rising in South Africa (Visser, 2021), thus, the duty of the State to enact laws, and put in place policies and institutions such as the Ministry for Women, Children, and People with Disabilities to protect children from abuse, exploitation, and other societal ills underscore. The question, therefore, is, to what extent has the state done these? Robinson (2017, p71) argues succinctly that; It is clear that neither of these subsections imposes an absolute ban on child labor. It recognizes the fact that thousands of children are engaged in paid labor of some kind and that the lives of such children, and in many instances that of their families, depend on their ability to earn an income in this way. The duty to protect children against exploitative labor practices also does not require an absolute ban.

Despite this national legislation including the Social Assistance Act 13 of 2004, exploitation of children and young people through various labor practices in South Africa are patent. The section below explored some of the policies and programs linked to children and young people’s rights.

3.2.6

Children and Youth Development

Children’s and young people’s development are crucial for every nation. Thus, following the previous APRM report, the government of South Africa established the National Integrated Early Childhood Development Policy under the auspices of the Department of Social Development. This is also in line with the government’s quest to ensure that children and young people in the country have access to early childhood development services either in the national, provincial, or local sphere of

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government. The aim is to anchor the national integrated system of early childhood development services through a legal, policy, and institutional framework that can identify, provide enablers, and compel relevant stakeholders to ensure that early childhood development programs are available and accessible to all infants and young children and their caregiver. The government’s commitment to the protection and promotion of children’s and young people’s rights is tied to the establishment of these institutional arrangements within the three tiers of government. The aim is to put in place the necessary ECD plans, implementation strategies, and monitoring and evaluation systems to ensure that there are early childhood development services and support systems nationwide. This would ensure the provision of adequate public funding and infrastructure for sustainable universal availability of, and equitable access to, quality comprehensive early childhood development services. And to further establish appropriate monitoring, quality assurance, and improvement systems to secure the provision of quality early childhood development services and outcomes for young children in South Africa (Department of Social Development)—The National Integrated Early Childhood Development Policy 2015 is such a robust social policy which encompass several socio-economic aspects for children and their parents. These include social protection programs, parent support programs, learning, national public early childhood development communications, food security, health care, and nutrition programs as well as sport and culture. The above focus areas are under the Department of Social Development which subsequently proposed the amendments to the Children’s Act (38 of 2005) to better align it with issues identified National Integrated Early Childhood Development Policy. The quest for an amendment led to the current Children’s Third Amendment Bill (B18–2020), which further focuses on providing legal and institutional backing as well as policy and funds for early childhood development and matters relating to child’s rights protection and promotion. Apart from these national legislations, the national and provincial governments partnered with non-governmental organizations (NGOs) such as the Nelson Mandela Foundation to access the current state of ECD centers to ensure that they are well registered and able to realize some of the provisions in the policy. We recommend a collaborative tracking of all ECD centers since this could grant the national government the opportunity to identify areas that need support either from the government or civil society to realize the goals of the National Integrated Early Childhood Development Policy.

4 Emerging Legislation, Policies, and Practices in the Previous SA-APRM Report It is apt to state at this juncture that South Africa has signed and ratified several international and regional conventions/treaties which enjoin the government to enact policies and legislation domestically to protect and promote children’s and young

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people’s rights. Accordingly, the previous APRM country report recommended several such legislation regarding early childhood development, child trafficking, substance abuse, youth unemployment, poverty, corporal punishment, and adolescent and youth health policy inter alia. The government of South Africa has since enacted policies and legislative acts such as the National Youth Policy (2015 & 2020); National Adolescent and Youth Health Policy 2016–2020, Prevention of and Treatment for Substance Abuse Act 70 of 2008, National Integrated Early Childhood Development Policy among others that have concentrated on these issues confronting children and young people in South Africa. The last APRM country’s report observed that several children and young people especially those born to teenagers and undocumented migrants in South Africa are largely susceptible and prone to abuse of their fundamental human rights despite the 1996 Constitution and other legislation that attempt to protect and promote such rights. The Constitution has entrenched sections for the protection of the rights of children. By extension, children and young people are not only covered by Section 28 of the Constitution alone but also the right to education, legal identity, good health, and others which, Scott and Alston (2000) argued to be “personal autonomy constructed from the rights to privacy, freedom of religion, freedom of expression and freedom of association read together, are the most important.” Consequently, children of refugee parents, asylum seekers and undocumented migrants are confronted with several fundamental human rights issues as professed in the previous APRM country’s report. The rights of these children are not in doubt in the 1996 Constitution; however, the fate of many of these children is legally determined by the Children’s Court when their parents are arrested by the security services. The government predicament has always centered on whether to grant asylum or not to these children when their parents are arrested. Despite these children being protected by international, regional and domestic conventions and legislation, the extent to which they are protected under the present Refugee Act 130 is vague. For instance, the Refugee Act 130 reads; “The Children’s Court may order that a child contemplated in subsection (1) be assisted in applying for asylum in terms of this Act.” Although the apex charter of the land was crafted with the history of the country in mind, that is, to protect, respect, and promote the rights and dignity of every South African irrespective of race, gender, among others including children and young people of undocumented migrants and asylum parents. In addition to the foregoing, it was realized that young people are vulnerable to drugs and other lethal substances in South Africa. Linked to this, as stated in the previous report is human trafficking. Thus, it could be argued that the Prevention and Treatment for Substance Abuse Act 70 of 2008 and Prevention and Combating of Trafficking in Persons Act 7 of 2013 are well-suited legislation seeking to curb substance abuse and child trafficking among young people, respectively. The call for the incorporation of such issues into youth programs and policies was adhered to by the states judging from the enactment of the legislation above. The extent to which the issues have been integrated into the educational curriculum is, however, contentious.

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While every child enjoys the same protection enshrined in the Bill of Rights as their adult counterpart (Robinson, 2017). However, it does not permit children to have singular self-determination and this tends to erupt in conflict among children, their parents, and the State (Robinson, 2017). Children are still abused by their parents in the name of discipline. The landmark judicial precedence which abolished corporal punishment has deterred parents from such acts to a very large extent in the country. We argued that a compromise must be reached whereby children could trace their claims to personal autonomy and self-fulfillment in law. Since the duties and responsibilities of the State and that of parents are tied to the age of the child, the constraint induces by the rights becomes more complicated as the child attains older age (Robinson, 2017).

5 Children and Young People’s Rights and Abolishing of Corporal Punishment Despite the revelation from the previous APRM report, there have been some improvements concerning the rights of children and young people. Between the period 2011–2020, there have been some court rulings on ‘children-young people related’ and other initiatives that have been implemented in an attempt to provide some remedies to the issues identified in the previous report which include but are not limited to corporal punishment, poor early childhood development, the abysmal state of children of refugees and undocumented persons as well as other socioeconomic challenges confronting children and young people in South Africa. Corporal punishment (CP) was rooted in the ways and other power relational patterns historically in South African society as revealed by a previous APRM report. The notion behind corporal punishment is embedded in authoritarian regimes that tend to argue that discipline and obedience in society emanate from punishment and fear. However, in a constitutional democracy such as South Africa, these authoritarian ways of disciplining children and young people are deemed to be an infringement on their rights. While the approach has largely been used in South Africa for years, it became apparent that there is a need to rethink it. CP was endorsed by law under the Apartheid regime and further enforced through the Dutch Reformed Church and other Christian National Education Schemes (Porteus et al., 2001). It was a medium through which the Apartheid regime was entrenched (Bower, 2002). However, through a unanimous rule, the Constitutional Court in 2019 banned any form of corporal punishment emitted against children and young people by their parents or any higher authority. In reading the unanimous judgment, the Chief Justice reiterated that ‘reasonable or moderate chastisement’ including corporal punishment is not consistent with the 1996 Constitution of the republic. The Constitution states that everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or

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private sources. The section in conjunction with other subsections (d) and (e) further argued that nobody should be subjected to any form of torture or be treated in a cruel, inhuman, or degrading way. Despite the earlier call to rethink the use of corporal punishment by parents and caregivers, the ruling by the constitutional court further triggered the outcry by child rights lawyers and activists. The judgment was a huge landmark in the country’s efforts to promote and protect children and young people’s rights. This is apart from, reviewing the Child Care Act, the South African Law Commission recommended the adoption of alternative approaches such as education and awareness-raising by parents and caregivers as opposed to corporal punishment. This is deemed to be positive parenting as expressed in the South African Law Commission Act, 1973 (Act 19 of 1973) report on the Review of the Child Care Act 2002. Moreover, the Children’s Third Amendment Bill (B18–2020) is currently under discussion in parliament to amend the Children’s Act 2005 by taking a second look at various sections of the immediate action to establish a National Child Protection Register. These are all in line with the country’s effort toward promoting and protecting children from any form of violence from family or the State. The ongoing amendment of the Children Act 2005 is timely for the government to further showcase its commitment to promoting and protecting children and young people’s rights.

5.1

Undocumented Migrants/Refugees and Children’s Rights

It is worthy of note that the Refugees Act 130 of 1998 is weaved into the recent Immigration Act 13 of 2002 concerning non-nationals who are in South Africa. In 1993, South Africa became a signatory to the memorandum of understanding between the government and the United Nations High Commissioner for Refugees (UNHCR), which permits refugees to enter the country. Despite these acts and conventions in which South Africa is a signatory, there are ambiguities surrounding some of the provisions governing the status of children of non-nationals and refugees. Under these acts, children of refugees and undocumented migrants are deemed to be aliens, and not entitled to permanent residency. The status of children traveled with or born to refugee parents in both acts is not explicitly stated as well as the right to access other basic services such as housing, school, health, and safety. Nonetheless, the Refugee Act states that the child of an illegal foreigner or refugee can apply for asylum status as stated: “Any child who appears to qualify for refugee status in terms of section 3, and who is found under circumstances which indicate that he or she is a child in need of care as contemplated in the Child Care Act, 1983 (Act No. 74 of 1983), must forthwith be brought before the Children’s Court for the district in which he or she was found. The Children’s Court may order that a child contemplated in subsection (1) be assisted in applying for asylum in terms of this Act (Refugee Act 130 of 1998)”. These children, consequently, do not

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have the rights as their counterpart South African nationals to access basic socioeconomic services including education. There is a great limitation on access to education especially, for illegal foreigners and migrant children. Though South Africa is a signatory to the United Nations (UN) International Covenant on Economic, Social and Cultural Rights which emphasized that: “all children within a state, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care.” Unfortunately, South Africa has not lived up to the dictates of the Convention as expressed in Section 39 of the Immigration Act 13 of 2002 which states that; “No learning institution” shall knowingly provide “training or instruction” to an “illegal foreigner.”

5.2

Insights on Children’s and Young People’s Health, Drugs, Gangsterism

The United Nations Convention of the Right of the Child in 1989 coupled with Section 28 of the Bill of Rights in the 1996 Constitution of South Africa paved the way for the protection and promotion of the right of children and young persons. Besides, the success of the Africa Union Charter is dependent on how well each member country implements the charter by aligning it to their national policies and laws from the center to the grassroots level. Thus, there are some policies and acts that have been implemented and enacted respectively to ensure that the South African child and young people are cared for since the previous APRM report. These include the National Adolescent and Youth Health Policy 2016–2020, Prevention and Combating of Trafficking in Persons Act 7 of 2013, and National Youth Policy (2015 & 2020). Thus, the well-being and health of children and young people in South Africa have become paramount issues for both the central and provincial governments judging from the numerous policies and acts and the rate of substance abuse in recent times. The exploitation of children and young people in the sales of drugs and gangsterism is on the rise in South Africa despite the recent policies and acts such as the Prevention of and Treatment for Substance Abuse Act 70 of 2008, Prevention of Organised Crime Act, No. 24 of 1999 inter alia are enacted to curb the abuse of drugs which is tied to gangsterism and other related organized crime and violence. It has become obvious that gangsterism in most communities, (townships) has become a matter of survival for children and young people. While several factors have been alluded to such as organized crime, issues of unemployment, inequalities, and poverty are key factors in the rise of gangsterism. Gang-related murders are increasingly sharp in townships and the fight against it, either at the national or provincial level has not materialized judging from the continued rise of gang-related violence and murder in the country. This is contradictory to the above-mentioned acts which seek to mitigate the abuse of drugs and

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gang-related crimes among young people in South Africa. Consequent to this, are other challenges confronting children and young people in South Africa, such as poor mental healthcare, alcohol abuse, violence, broken home, HIV/AIDS, and poverty, just to mention a few.

5.3

Social Intervention Policies and the Dilemma of Young People’s Development

The young population in South Africa is one of the vulnerable groups as observed in the APMR Country Review Report, South Africa. They are also susceptible to the use of lethal drugs and other related commodities which are on the increase in the country, apart from the scourge of unemployment. Having implemented the previous five-year youth policy and with the revealing challenges pointed out by the above report, the government of South Africa put together another National Youth Policy (2020–2030) to further implement the programs set out in the 2015–2020 National Youth Policy. The vision of the NYP 2030 is: “an integrated, holistic and sustainable youth development, conscious of the diversities, historical imbalances, and current realities, in building capacities for young people, so that they can, in turn, contribute their full potential in building a better life for all.” The policy aims to provide the prerequisite training, tools, and enabling environment for young people’s development so they to contribute their quota to the local, provincial and national development agenda in South Africa. The aim is to provide pragmatic remedies to address the past injustices of the emerging socio-economic challenges of the country’s teeming young population. The NYP policy is accompanied by other interventions and initiatives geared toward improving the health and well-being of children and young people, including legislation, policies, initiatives, and media campaigns such as Prevention of and Treatment for Substance Abuse Act 70 of 2008; National Adolescent and Youth Health Policy 2016–2020; Integrated School Health Policy; Child Support Grant; National Youth Service Framework inter alia. These legislations, policies, and acts are aimed at providing leadership and employment opportunities for both skilled and unskilled young people. Nevertheless, the youth unemployment rate in South Africa increased to 66.5% in the last quarter of 2021 from 63.30% in the first quarter of 2021 (Statistics South Africa, 2022). The current unemployment rate among young people between the ages of 18–24 in South Africa is alarming and could be a security threat to the country’s future. The abuse of young people through child labor, and physical and other forms of exploitation continues to be alarming and an obvious problem in the country. Consequently to this, some children and young people are trapped in the ‘ghost children and young workers’ conundrum in the informal sector of the economy.

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6 Conclusion and Recommendations This chapter gives the following summation before drawing its conclusion that, despite the gains in child rights protection in South Africa, there remain several aspects that need to be improved for the promotion of children’s and young people’s rights as observed by the previous South African APRM Country Reports (2011, 2014). The report recommended the need for some rethinking with regard to the forms of corporal punishment (physical beating of children and young people) in the name of discipline; early child development needs to be a priority not only for children in school but their fellow counterparts who are not attending school. The onus is on both the state and parents when it comes to children and young people’s development. The synthesis observed that children of refugees, asylum seekers, and undocumented persons are not treated like their fellow counterparts who are citizens since they can be implicitly refused permanent residency status not to talk about citizenship. They are detained by the security forces with their parents in some cases. Nonetheless, it can be acknowledged that under the constitutional democracy since 1994, South Africa has enacted progressive legislation, acts, and policies that dignify and value people including children and young people. There has been a drastic change in the social and political spheres in South Africa since the promulgation of the 1996 Constitution which houses the Bill of Rights (fundamental human rights and freedom). The rectification of the UNCRC ushered in several related children’s and young people’s acts and laws; however, these efforts are not closer to ratified UNCRC manual judging from the country’s current situation. There are many socio-economic and inequalities challenges that continue to undermine the country’s progress. The presence of street children, trafficking, and child labor is obvious in South Africa today. The total well-being of the child is a function of the presence of a protective and caring family, but several broken homes undermine the state’s and community’s efforts. The conclusion is drawn on the premise that an all-inclusive strategy that incorporates income generation, access to education, healthcare, shelter, and social services among others is an urgent need. This, it is hoped can positively impact the lives of thousands of children to ensure their survival and protection.

6.1

Recommendations

Given this synthesis, we proposed the following recommendations to enhance the promotion and protection of children’s and young people’s rights in South Africa. • Establish a national commission on the rights of children and young people with a legislative mandate to constantly monitor and evaluate children and young people’s rights violations and handle complaints.

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• Promote local advocacy by establishing districts and provincial commissions to locally advocate and promote children and young people’s rights including children of undocumented migrants/refugees. • Set up a statutory agency that constantly reviews current national and provincial legislation, acts, and policies that infringe upon the rights of children and young people. • Established multi-agency working groups and children and young people’s advocacy groups to champion the rights and interests of children. • Provide clarity on the role of each sphere of government in the implementation of the Immigration Act. • Formulate intersectoral collaboration implementation guidelines and strategies for a holistic implementation of the NYP. • Review the Immigration Act and any policies infringing on the rights of children of illegal foreigners to align with international conventions and protocols. • Establish Anti-Drug/Gang Units within the national and provincial security forces will be a step in the right direction to curb the exploitation of children and young people in such undertakings.

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Promotion and Protection of the Rights of Citizens in South Africa: A Review Omololu Fagbadebo

and Olumuyiwa T. Faluyi

1 Introduction Parts of the pillars of democratic South Africa is the promotion and protection of the interests of citizens, irrespective of their backgrounds. The Constitution of the Republic of South Africa, 1996, states, among other things in its preamble that the founding fathers aimed at establishing “a society based on democratic values, social justice and fundamental human rights” (Constitution of the Republic of South Africa, 1996 as amended). In addition, democratic South Africa also sought to “Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; improve the quality of life of all citizens and free the potential of each person.” (Constitution of the Republic of South Africa, 1996 as amended). In other words, the major priority of the government of South Africa at all levels is the advancement of the rights of citizens through an egalitarian practice and demonstration of democratic values and norms for effective public service delivery. Chapter ten of the Constitution exemplifies these ideals in the statutes relating to public administration. These values and principles expected to guide public administration in the country are listed below. (a) A high standard of professional ethics must be promoted and maintained. (b) Efficient, economic and effective use of resources must be promoted.

O. Fagbadebo (*) Department of Public Management, Law and Economics, Durban University of Technology, Riversid Campus, Pietermaritzburg, South Africa e-mail: [email protected] O. T. Faluyi Institute for Pan-African Thought and Conversation, University of Johannesburg, Johannesbrg, South Africa © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_8

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(c) Public administration must be development-oriented. (d) Services must be provided impartially, fairly, equitably and without bias. (e) People’s needs must be responded to, and the public must be encouraged to participate in policymaking. (f) Public administration must be accountable. (g) Transparency must be fostered by providing the public with timely, accessible and accurate information. (h) Good human resource management and career development practices, to maximise human potential, must be cultivated. (i) Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation (Section 195 (1), Constitution of the Republic of South Africa, 1996 as amended). These values and principles are expected to guide the provision of services at all levels of government because citizens are the priority of democracy. Inherent in these democratic values and principles are the enshrined rights of citizens to access public services for the advancement of their well-being. This is the platform of the post-apartheid democratic society in South Africa. As a demonstration of their commitment to the human rights perspectives of these values and principles, the drafters of the Constitution devoted chapter two of the Constitution to the various guaranteed rights available to South African citizens.

2 The Bill of Rights Given its apartheid past with an avalanche of violation and abuse of the rights of citizens, the Constitution prioritise respect for human rights. Section 7(1) of the Constitution defines the Bill of Rights as “a cornerstone of democracy in South Africa” that “enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom” (Constitution of the Republic of South Africa, 1996 as amended). The elaborate Bill of Rights contains 27 items that encompass all areas of the needs of citizens. In other words, the Bill of Rights addresses issues relating to public services that guarantee the provision of the basic needs of human rights. To complement the implementation of these rights, the government set up a series of judicial and quasi-judicial mechanisms to monitor compliance and adjudication of a violation of these rights. These are the various courts and specialised commissions such as the Commission on Gender Equality (CGE), and Human Rights Commission, as well as law enforcement agencies, especially the South African Police Service (SAPS). The objective of the Bill of Rights is in tandem with part of the preamble of the Constitution that exemplifies the commitment of the South African State to

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“Improve the quality of life of all citizens and free the potential of each person” (Constitution of the Republic of South Africa 1996 as amended). Section 7 (2) of the Constitution mandates the State to “respect, protect, promote and fulfil the rights in the Bill of Rights,” while Section 8 (1) equally defines the application of the rights “to all law, and binds the legislature, the executive, the judiciary and all organs of state” (Constitution of the Republic of South Africa 1996 as amended). This is a departure from the practice of apartheid South Africa, characterised by “racism, sexism and other forms of discrimination” (African Peer Review Mechanism (APRM), 2009). To demonstrate its commitment to the recognition and enforcement of human rights, the South African government has acceded to or ratified about 50 different international and regional instruments on the promotion and protection of human rights. The 27 items in the Bill of Rights are equality, human dignity, life, freedom and security of the person, slavery, servitude and forced labour, privacy, freedom of religion, belief and opinion, freedom of expression and assembly, demonstration, picket and petition. Others are freedom of association, political rights, citizenship, freedom of movement and residence, freedom of trade, occupation and profession, labour relations, environment, property and housing. Health care, food, water and social security, children, education, language and culture, cultural, religious and linguistic communities, access to information, just administrative action, access to courts and arrested, detained and accused persons, are the remaining issues in the Bill of rights. By implication, the government cannot overlook these issues, as statutory constitutional matters, in its dealing with citizens. In its policies and actions, except where there are limitations as defined by the Constitution, the government and other state agencies must accord respect to the observation and implementation of these issues. The implication of this is that South Africans, irrespective of their race, could enjoy fundamental human rights. The Bill of Rights shields individual residents of South Africa against any form of abuse or discrimination during their heir legitimate activities. It guides the government in the exercise of state power and the provision of public services. However, contemporary development in South Africa points to the inadequacies in the implementation of the contents of the Bill of Rights (Francis & Webster, 2019). Some contemporary issues in the country, however, raise questions about the success of the government in the promotion and protection of these rights.

3 Promotion and Protection of the Rights of Citizens: Response to Previous APRM Reports Previous APRM reports have indicated the inadequacies associated with the commitments of the government towards the promotion of the rights of citizens as contained in the Bill of Rights (APRM, 2014). Lack of public awareness and lack of access to justice are the two major identified factors affecting the promotion of the

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rights of citizens. Toward this end, the government responded with some mechanisms to create awareness and strengthen the justice systems and institutions (APRM, 2014). Parts of the mechanisms include the translation of the Constitution into eleven local languages and constant awareness campaigns to allow citizens to enjoy the right to access information. These measures are parts of the designs to advance the implementation of the Promotion of Access to Information Act 2 of 2000 (PAIA). The Act was designed To give effect to the constitutional right of access to any information held by the State and any information that is held by another person and that is required for the exercise or protection of any rights; and to provide for matters connected therewith (PAIA 2000, as amended).

In other words, the Act is a statute to complement the promotion of the rights of citizens given the importance of access to information. The preamble of the Act enumerates the importance of the statute to include the need to “actively promote a society in which the people of South Africa have effective access to information to enable them to more fully exercise and protect all of their rights” (PAIA 2000, as amended). Indeed, the government prioritised public participation in the various awareness programme through training sessions for citizens in their respective communities. “The development of this tool ensures that awareness on PAIA is sustained and that communities are empowered to the extent that the dependence on the Commission is minimized” (APRM, 2014, p. 40). In the area of access to justice, the government increased the number of black South African judicial officers “who can speak many indigenous languages” (APRM, 2014, p. 41). In addition to this, the government also established courts and other justice facilities in the various townships and villages, especially the Equality Court. This is a complementary judicial institution to advance the equality rights of citizens, as enshrined in section 9 of the Constitution, given the discriminatory policies and practices of the apartheid system. The Court focuses “on the enforcement of equality principles in the constitution to undo the colonial and apartheid legacy of entrenched racial and gender inequality regarding access to justice” (APRM, 2014, p. 41). As a racially divided country, South Africans, especially blacks, are conscious of the pains associated with the deprivation of the apartheid regimes. The constant incidents of racial hostility have remained challenging, with the need to ensure fairness and justice. Despite these strides, various institutional and societal constraints still hamper the promotion of the rights of citizens in South Africa. Inequalities, disparities, distortions and, mostly, corruption have remained a paradox of a state that claims to be a rainbow nation, committed to ensuring equality, justice, accountability and fairness. Section 7 (1–2) of the Constitution of South Africa 1996 states thus: This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights (Constitution of the Republic of South Africa 1996).

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By implication, it is the responsibility of the government to ensure that human dignity, inequality and freedom remain a priority in the conceptualisation, formulation and implementation of public policies. Thus, adherence to the principles of public administration, as contained in Chapter 10 of the Constitution, is a sine qua non for the promotion of human rights. However, this assumption of human dignity has remained unattainable as gender-based violence becomes a monster (Fagbadebo, 2021).

4 Drivers of Human Rights Abuse in South Africa The various institutional mechanisms to accomplish the purpose of the Bill of Rights are not functioning as expected. Several factors affect the capacity of these institutions to perform their roles in manners that are commensurate with the intendment of the drafters of the Constitution (APRM South Africa Second Generation Review Report, 2022). Several factors drive the continuous abuse and violation of rights in South Africa. This chapter discusses just a few.

4.1

Corruption as a Driver of Human Rights Abuse in South Africa

This singular factor has multiplier effects on the ability of aggrieved citizens to access justice. The general corruption occasioned by the abuse of power coupled with the weak justice system has made it difficult for citizens to harness the benefits of the Bill of Rights. South Africans lament about corruption in the police service, and stakeholders in some provinces suggest that the justice system favours mostly the wealthy and more powerful individuals because most of the time the police do not take complaints filed against the rich and influential members of the society seriously (APRM South Africa Second Generation Review Report, 2022, p. 8).

Globally, corruption has been recognised as a singular phenomenon that stifles growth and development (Bakken & Wang, 2021). In some societies, corruption has led to the collapse of empires, governments and corporate bodies with the relics of its devastating consequences (Ang, 2020; Bakken & Wang, 2021). A former British Prime Minister, David Cameron, likened corruption to cancer. From officials taking backhanders, to leaders bleeding their nations dry, corruption has been described as a cancer. It takes a toll on countries’ prosperity and opportunities. It takes away people’s livelihoods and even their lives. It takes place in every country in every continent on earth. And the world needs to take it far more seriously. Because it is also now being used as a tool of statecraft. . .a weapon with which autocratic, anti-democratic regimes can undermine other countries’ systems, political parties and elections (Cameron, 2017).

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Corruption in government administration is a malign force that bleeds a healthy society to death with devastating consequences on the livelihood of citizens. Because it affects the lives of the people, corruption is an instrument of human rights violation (ICHRP, 2009; Vrushi & Kukutschka, 2021). “Corruption enables both human rights waves of abuse and democratic decline. In turn, these factors lead to higher levels of corruption, setting off a vicious cycle” (Vrushi & Kukutschka, 2021). It undermines democratic governance and endangers the lives of citizens. Finally, corruption can directly undermine a government’s ability to fulfil its human rights obligations to take positive actions to guarantee the enjoyment of basic human rights. When states allow the embezzlement of public funds meant to be spent on providing healthcare or when rigged public procurement processes fail to deliver the necessary goods and services for education, states fail in their responsibility to fulfil the rights to health and education (Vrushi & Kukutschka, 2021).

Corruption has engendered ineffective public service delivery and widened the inequality gap. Unemployment, poverty and hunger as well as other variables of the crisis of governance have continued to hit citizens. Crime and criminal activities have continued to endanger human security. Corruption in the justice and security systems increases the rate of human rights abuse. Corruption in law enforcement can jeopardise people’s safety and victims' access to justice. On the one hand, corruption in law enforcement can drive human rights violations such as ill-treatment or torture in the hands of officers including in detention settings or through police practices. In other cases, corruption might permeate the administration of justice including by slowing investigations into human rights violations and affecting due process (Vrushi & Kukutschka, 2021).

Thus, the poverty level among a majority of the people constrains their ability to afford legal services where and when desperately needed. Efforts by the South African government to provide legal aid are laudable but there are concerns that offices of Legal Aid South Africa are not accessible to people outside of the main towns, and rural residents are not aware of their existence and operations. Also, administrative inefficiency at many lower courts affects citizens’ access to justice. Hence, some courts experience a huge backlog of cases and incidents of missing documents in courts sometimes compound this situation. In South Arica, corruption has remained a potent factor responsible for the bourgeoning crisis of governance, thereby contributing significantly to the violation of the rights of citizens to access basic needs and services guaranteed in the Constitution (Mantzaris, 2017). Since corruption jeopardises effective public service delivery, it means that mismanagement of resources limits citizens’ access to socioeconomic benefits derivable from the government. Instead of utilising their budgets ethically and appropriately for the benefit of the citizens, corruption that has slowed or in many instances impeded effective service delivery, has resulted in deprivation, growing poverty levels, lack of trust and a wide variety of almost perpetual protests that ultimately lead to political and social instability (Mantzaris, 2017, pp. 18-19).

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The fiscal policy of the government, as reflected in the appropriated budget, is the hallmark of service delivery. When the political leaders divert the appropriate funds to satisfy their pecuniary interests, policy failure becomes manifest and citizens groan under the pains of unavailable public services. Thus, corruption endangers the enjoyment of the socioeconomic rights guaranteed by the Bills of Rights in South Africa. By their nature, socio-economic rights have important social and economic dimensions as most of them reflect specific areas of basic needs or delivery of particular goods and services. The delivery of such goods and services requires substantial budgets that are often allocated by the government. However, corruption has the effect of putting pressure on such budgets, thereby undermining the quality of goods and services delivered and violating the socioeconomic rights of the people. It is therefore submitted that the abuse of public funds meant for the provision of socio-economic goods constitutes a violation of socio-economic rights (Mubangizi, 2020, p. 229).

This is a breach of the constitutional provisions on the principles of public administration and a violation of the rights of citizens to access essential basic services as envisaged in the Bill of rights. Corruption in South Africa in the views of the political leadership has become “a form of redress and mechanism for the reallocation of resources to the previously disadvantaged” (Mubangizi, 2020 p. 227). This is anathema, as the practice has led to the capture of the state with its devastating consequence on the quality of public services.

4.2

Inequality, Unemployment and Poverty

Parts of the apartheid legacies in South Africa are poverty, massive structural unemployment and unequal distribution of wealth and income (APRM, 2022). Nevertheless, since 1994, despite the promise of an egalitarian equal society, inequality has remained a characteristic feature of South African society, 28 years after the end of apartheid (The World Bank 2021, 2022). The World Inequality Lab (2022) in its World Inequality Report noted that only 3500 adults owned a larger proportion of the wealth of the county’s 60 million population. Post-apartheid South Africa has been characterized by “extreme economic inequalities” (World Inequality Lab, 2022, p. 217), as the governments at all levels have not implemented structural economic reforms capable of stimulating an inclusive society. Structural unemployment is a function of the disparity between workers’ skills and the required skills for available jobs (APRM, 2022). Poor governance, corruption, slow growth and lack of essential capacity, among other factors, have sustained the high level of poverty, inequality and unemployment. To the poor in South Africa, poverty encompasses isolation from the community, food insecurity, crowded homes, use of unsafe and inadequate forms of energy, poorly remunerated and secured jobs, and disintegration of the family (Khambule & Siswana, 2017; APRM, 2022).

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The proportion of people living on less than $1 per day was 11.3% in the year 2000 but it reduced to 5% by 2006 (APRM, 2014: 104). Giving the details about the level of poverty in the country is incomplete without taking a look at the level of unemployment in the country. Unemployment is one of the major factors responsible for poverty. In 2005, the average unemployment rate was 27.08% (APRM, 2014: xi). As of September 2010, the unemployment rate was 23.4% while it moved to 24% in the last quarter of the same year, October to December (APRM, 2014: 55). The last quarter of 2011 also recorded an unemployment rate of 23.9% (APRM, 2014: 55). In the first quarter of 2022, the unemployment rate dropped from 35.3% to 34.5%, a reduction of about 60,000 out of the previous 7.9 million unemployed people (SA News 31/05/2022). Even though there was a slight decrease compared to previous figures, the South African youth population remains vulnerable in the labour market. According to the Statistician-General, Risenga Maluleke, the decrease did not translate to relief. “The increase in employment and decline in unemployment among the youth resulted in a decrease in the youth unemployment rate by 1.2 percentage points to 47.8% in quarter one of 2022 (cf. SA News 31/05/ 2022).” By implication, a majority of the South African youth are denied their socioeconomic rights because living has become difficult in the face of unemployment. One of the measures to address this problem is the social relief grant extended to people, especially during the COVID-19 crisis (Patel, 2022). Previous APRM reports indicated the effect of the various social assistance schemes and measures. Social Assistance grants also exist to cushion the effects of unemployment and poverty. The Social Security Assistance Programme remains the major anti-poverty strategy and it is targeted at vulnerable groups such as women, the aged, children and people living with disabilities (South Africa’s APRM Programme of Action, 2009: 15). Over 10.5 million were granted access to social assistance grant. By 2007, over 12 million had access to social grants compared to the 2.5 million in 1999 (APRM, 2014: 105). At the period, these social assistance grants included old age grants, child support grants and disability grants. These grants have been expanded to also include the Social Relief of Distress; the Care Dependency Grant; the War Veteran’s Grant; the Foster Child Grant, among others (APRM South Africa Second Generation Review Report, 2022: 37). This expansion speaks on the intention of the government to address poverty. One of the root causes of unemployment and poverty is poor service delivery. If these services are not adequately provided, citizens, especially the poor do not have the capacity to source alternatives from private providers, and the cost of running a business becomes high. Even though such social assistance is a measure to “speed up poverty reduction and income redistribution” it is not sufficient to address the challenging problem of unemployment and its attendant hardship (Patel, 2022). Its impact on poverty alleviation is limited and as such inadequate to redress the problem of socioeconomic rights of citizens that are in jeopardy

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Employment growth and better-quality jobs would bring more people into the social insurance system and build a larger middle class. Social and economic challenges that were intensified by the pandemic are likely to continue. This may further deepen structural unemployment, with some jobs being lost permanently. Ongoing monitoring of the economic recovery and of social development indicators over time is likely to aid more effective policy making (Patel, 2022).

4.3

Violence against Women and Children

Women and Children are among the vulnerable groups to violence and assaults. This impedes their rights to security and human dignity. They are victims of human trafficking, rape, sexual assaults child labour and prostitution. Gender-based violence is still very high in the country (Fagbadebo, 2021; APRM, 2022). Violence against women encompasses physical, sexual and psychological activities in the family and the community. Those that have partners are the most vulnerable. One in five partnered women has been subjected to physical violence by their partners (Stats SA, 2020). Those that are not educated or less educated (below secondary school) are mostly affected (Stats SA, 2020). This shows the nexus between education and empowerment. Hence, if these women are educationally empowered, they have a higher propensity to be economically empowered and less susceptible to genderbased violence. Women and children are victims of dehumanising forms of rape, killing and murder. For instance, the killing of Ms. Tshegofatso Pule in July 2020 was one of the most horrible murder incidents in recent times (Myeni, 2021). The 28-year-old woman, with eight-month pregnancy, was killed and hunged on a tree. The sheer brutality of this crime shocked locals and activists in the country. Shortly after her death, and as more South Africans became aware of the “shadow pandemic” of femicide, the hashtag #StopKillingWomen trended on social media. Both men and women have spoken up about the crisis and have continued to speak publicly about the issue (Chitale, 2021).

No fewer than 51% of women in South Africa have experienced harrowing cases of degrading humiliation and assaults while several have lost their lives in such undignified circumstances. In several other cases, it is evident that the bodies of women in South Africa are “crime scenes” (Myeni, 2021). The increasing rate of this crime that denigrates the dignity of women is an attestation of a weak justice system that has no sympathy for deterrent outcomes. Ineffective security of lives of women is a major setback as well. Children suffer from poverty, hunger, good shelter, poor access to good shelter and different types of diseases (APRM, 2022). The most prevalent forms of child abuse are child labour, drug abuse, trafficking and abduction, and sexual exploitation, among others. In schools, children especially girls are raped, sexually abused, harassed and assaulted by male teachers and classmates. This does not mean that the government is inactive in tackling the scourge of these criminal activities. There exist some legislative frameworks and action plans to

142 Table 1 Reported Cases of rape 2011 to 2021

O. Fagbadebo and O. T. Faluyi YEAR 2011/2012 2012/2013 2013/2014 2014/2015 2015/2016 2016/2017 2017/2018 2018/2019 2019/2020 2020/2021

Rape 47,069 40,408 45,349 43,195 41,503 39,828 40,035 41,583 42,289 36,330

Sexual offences 60,539 60,888 56,680 53,617 51,895 49,660 50,108 52,420 53,293 46,214

Assault 6967 6597 6087 7194 6212 6271 7749 7437 6786 7025

Source: Compiled by authors from different public reports

combat this menace. The government enacted laws that protect the rights of the children and bolster a sense of dignity through adherence to the formal criminal justice system (South Africa’s APRM Programme of Action, 2009). Other action measures include the establishment of specialised courts for sexual offences, the Family Violence Child Protection and Sexual Offences Units within the police force, and the appointment of over 2000 forensic social workers (APRM, 2014: 38). In 2013, the government trained 476, and 104 police officers on Domestic Violence Learning Programme and Victim Empowerment Programme and Victim Charter, respectively (APRM Annual Report, 2017: 43). To boost anti-rape strategies, the government established the Thuthuzela Care Centres (TCCs) as a one-stop facility to lower secondary trauma for the victims, improve conviction rates and reduce the time it takes to finally decide cases (APRM, 2022). Despite all these measures, cases of violence against women and children continue to increase, as shown in Table 1. This figure shows a high rate of these criminal activities that violate the rights of citizens. Even though the figure fluctuates, the fact that criminal activities of this magnitude continue to fester is a cause for concern.

5 Service Delivery There is low capacity at the provincial and local levels and the country also suffers from skills shortages. There is a dearth of versatile and experienced managers and professionals in all sectors (APRM, 2014: 20). These coupled with corruption negatively affected service delivery. The backdrop of this is evident in the protests in reaction to dismal service delivery. Major service delivery protests are as follows, 2004–10; 2005–34; 2006–2; 2007–32; 2008–27; 2009–105; 2010–111; 2011–81; 2012–113 (APRM, 2014: 100). The conclusion that can be drawn from this is that despite heaping the blames of poor service delivery on the oppression and deprivation from apartheid, post-apartheid governments are still faced with the challenge of

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protests on service delivery. Some services will be put under the radii in this chapter, and this includes housing, water, sanitation and school enrolment. The oppression and deprivation by the white minority in the early 1990s came with a housing backlog of 1.4 million to three million and between five million and 7.7 million people living in shacks (APRM, 2014: 15–16). However, by 2005, about 2.4 million housing subsidies had been approved, and the poor had about 1.74 million housing units built for them (APRM, 2014: 16). The number of households increased from 11.2 million in 2002 to 17.2 million in 2017 (General Household Survey, 2019: 6). Also, housing in the country is based on formal, informal and traditional dwellings. Above 81.9% of South African households living in formal dwellings, 12.7% in informal dwellings and 5.1% in traditional dwellings as of 2019 (General Household Survey, 2019: 31). Then, hygiene of the citizens is also crucial. Those that had access to clean and safe drinking water in 1994 was only 59% of the population (APRM, 2014: 98). Households with Pipe Borne Water was 69.37% in 2005 (APRM Country Review Report South Africa, 2022: xi). The proportion of households with access to water has grown from 59% in 1994 to 88.6% in 2007 (South Africa’s APRM Programme of Action, 2009: 19). As of 2012, a national average of 94.7% had access to basic drinking water (APRM, 2014: 98). In an attempt to boost the water gap by 2030, the Strategic Water Partners Network (SWPN), which is a collaboration between the government and private sector, was formed to promote the groundwork for investment in the sector (APRM, 2014: 97). Related to safe and clean water is sanitation. From the early 1990s to the early 2000s, about 20 million did not have access to adequate sanitation and by 2005 over 8.2 million more people had basic sanitation infrastructure provided for them (APRM, 2014: 15–16). The proportion of households with access to sanitation has risen from 48% in 1994 to 73% in 2007 (South Africa’s APRM Programme of Action, 2009: 19). To ensure good waste management, 47 municipalities were supported in water conservation implementation and hundreds of municipal water waste treatments were accessed in the 2010/2011 financial year so that they can meet the required standards (APRM, 2014: 97). In the early 1990s, secondary school enrolment was 70% and it increased to 89% by 2005 (APRM Country Review Report South Africa, 2022: 15–16). As of December 2008, universal primary education had improved with more children in school (South Africa’s APRM Programme of Action, 2009: 16). In 2008, 40% of primary and secondary schools were declared no-fee schools (South Africa’s APRM Programme of Action, 2009: 16). To make the contents of the modules meet up with global standards and evolving situations, the curriculum was upgraded. In September 2011, The National Curriculum and Assessment Policy Statements (CAPS) were introduced to strengthen the national curriculum statements to enhance the quality of teaching and learning in schools (APRM, 2014: 94). One hundred and fifty thousand (150,000) educators and 2051 subject advisers have been mobilised on the implementation of CAPS (APRM, 2014: 94). There have also been strides made at the post-secondary level. Facilities for Technical and Vocational Education and Training (TVET) were hitherto degraded and neglected. Hence, the Department of Education recapitalised these colleges at R1.9 billion (South Africa’s APRM

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Programme of Action, 2009: 16). Consequently, 62,000 new students enrolled for the three-year National Certificate (Vocational) in 2008 and this exceeded the year’s target and out of these students 12,378 were assisted by state bursaries worth R67 million (South Africa’s APRM Programme of Action, 2009: 16). To create a conducive learning environment, infrastructures have been made available in schools. In 2011–12, there was provision of water to 55 schools, sanitation to 115 schools and electrification of 48 schools (APRM, 2014: 95).

6 Land Reforms The 1936 Native Trust and Land Act of South Africa allocated 87% of land to whites while 13% was given to blacks (APRM, 2014: 72). The apartheid system created an unfavourable land system for Black South Africans such that in post-apartheid South Africa, they are unable to engage in subsistence farming (APRM South Africa Second Generation Review Report, 2022: 5). This led to the migration of the poor to cities in search of greener pastures in the formal sector with most of them unable to secure appointment (APRM South Africa Second Generation Review Report, 2022: 5). This led to widespread poverty, polarised economy, poor living conditions and high crime rate (APRM South Africa Second Generation Review Report, 2022: 5). Land redistribution has the potentials of redistributing wealth, but the exercise suffers from post-settlement issues like skills, capital and access to market (APRM, 2014: 22). Consequently, Restitution of Land Rights Act No. 22 of 1994 was promulgated (APRM, 2014: 72). The effects of this Act are that between 2009 and 2011, around 823,300 hectares of land were acquired and allotted to 20,290 beneficiaries through the redistribution programme (APRM, 2014: 72). Approximately 76,368 land claims relating to 2.9 million hectares of land were settled (APRM, 2014: 72). Between November 2007 and December 2008, about 5.2 million hectares of land were distributed to land reform beneficiaries under the different programmes (South Africa’s APRM Programme of Action, 2009: 23). As evidence of very slight improvement, a land audit report has it that, 72% of the land is owned by the minority white population, Coloured 15%, Indians own 5%, Africans 4%, other 3% and co-owners 1% (APRM South Africa Second Generation Review Report, 2022: 27).

7 Racism Racism was a crucial instrument deployed to segregate the non-whites during racism. Following the backdrop of the independence in 1994 and the 1996 Constitution, several measures have been put in place to address racism in the country. The advancement of non-racism efforts formed part of the nation-building and national

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reconciliation processes in the 1990s, and various inter-racial dialogues in the 2000s were an addendum to these efforts (APRM, 2014: 109). In the past, racism is seen as a discriminatory action by whites against blacks because of the colour of their skin. However, in contemporary South Africa, whites still discriminate against blacks; it may be the opposite and whites racially discriminate against black immigrants (Adeogun & Faluyi, 2018). The focus of this chapter is on racism against South Africans. Whatever the form it takes nevertheless, the government’s efforts have been dynamic and commendable. Municipal borders have been demarcated and new wards were carved out to promote racial integration (South Africa’s APRM Programme of Action, 2009: 3). This is a sign that there are intergovernmental relations in addressing the situation. Consequently, learners from all races can now enrol in schools and racial integration in communities remained unabated (South Africa’s APRM Programme of Action, 2009: 3). The government has also shown its commitment to racism by projecting itself in this light globally. The hosting and participation in the United Nation’s World Conference against Racism in the year 2000 is an epitome of contribution to the global fight against racism (APRM, 2014: 109). However, despite these steps, few cases of racism were recorded. For instance, a white youth shot and killed some people because they were black and at the University of Free State, white youths treated staff badly because they were black (South Africa’s APRM Programme of Action, 2009: 3). Whites and blacks condemned these acts and the perpetrators have faced the full wrath of the law (South Africa’s APRM Programme of Action, 2009: 3). In response, the government has continued in its drive to decimate racism. South Africa has laws and measures put in place to support the Bill of Rights in the campaign against racism. This has been in collaboration with civil society organisations. The government and civil society organisations have made concerted efforts at organising education and advocacy programmes and dialogues on integration and social cohesion (APRM South Africa Second Generation Review Report, 2022: 11). The South African government has an Equity Court to hear cases of racism and also adopted a “National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance” which calls on the government to create a legal and policy framework for averting racism and xenophobia—principally in areas such as immigration policy, policing and administration of justice, human rights training for government officials, and the advancement of the benefits of cultural and social diversities (APRM South Africa Second Generation Review Report, 2022: 12). Summarily, it can be deduced that the country has made significant progress in promoting a racism-free society. However, this does not mean that there may still be a few subtle forms of racism. The most important thing is that government should continue to pursue the implementation of the Action Plan and other measures to promote an inclusive society.

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8 Access to Courts To have a more equal society, law courts play a crucial role in giving justice. Many South Africans are denied or find it difficult to use the justice system as a result of a lack of knowledge of the system, poor financial resources because of the cost of the justice system and corruption within the system (APRM South Africa Second Generation Review Report, 2022: 10). In response, the government has free legal services funded through Legal Aid South Africa. Also, the South African 1996 Constitution (amended through 2012) makes provision for ornate Bill of Rights for the individual, and it guarantees the right to access justice, free trial, equality before the law, among others (APRM South Africa Second Generation Review Report, 2022: 10). To expedite this important constitutional provision, the South African government has formed several institutions—courts and quasi-judicial mechanisms like specialised commissions like Commission on Gender Equality, Human Rights Commission (APRM South Africa Second Generation Review Report, 2022: 10). However, corruption in the police which has made the institution take the complaints filed against the rich less seriously, the inaccessibility of Legal Aid South Africa mainly for those outside towns and shallow knowledge about the existence of the Aid by those in the rural areas and administrative inefficiency at lower courts still affect the access to the justice system (APRM South Africa Second Generation Review Report, 2022: 10).

9 Conclusion The 2022 report of the BTI shows that high levels of unemployment, poverty and inequality are the three primary economic challenges confronting South Africa (BTI Report 2022). The dwindling electoral fortunes of the governing ANC are a manifestation of citizens’ increasing frustration occasioned by “state corruption and the slow pace of socioeconomic development” (Stiftung, 2022). The economy is in dire straits, with national debt spiralling due to increased state spending and financial mismanagement at state-owned enterprises. Exceptionally high levels of unemployment and inequality characterise South Africa’s economy, while poverty remains widespread. The COVID-19 pandemic has deepened the existing, self-induced economic crisis (Stiftung, 2022). To this end, there is the need for the government to abide with the various international norms and instruments to promote and protect the rights of citizens through accountable governance. The chapter has noted that corruption is the bedrock of the violation of human rights in South Africa. With explicit legislative frameworks, adjudged to the one of the best in the world (Mubangizi, 2020), the government of South Africa has no excuse to keep its citizens under the pains of the mismanaged economy. Thus, it is the responsibility of the government to carefully peruse required legislative and

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statutory mechanisms designed to promote good governance as a sign of commitment to addressing the structural and systemic violation of the rights of the citizens as envisaged in the Bill of Rights.

References Adeogun, T., & Faluyi, O. (2018). Xenophobia, racism and the travails of ‘black’ immigrants in South Africa. In O. A. Akinola (Ed.), The political economy of xenophobia in Africa (pp. 125–134). Springer. African Peer Review Mechanism (APRM). (2009). First report on the implementation of South Africa’s APRM programme of action. Retrieved on April 23, 2022, from https://au.int/ en/organs/aprm Ang, Y. Y. (2020). China’s gilded age: The paradox of economic boom and vast corruption. Cambridge University Press. APRM. (2014). Third Report on the implementation of South Africa’s APRM Programme of action. Broadening Public Participation. Available at https://www.gov.za/documents/third-reportimplementation-south-africas-africanpeer-review-mechanism-aprm-programme APRM Annual Report. (2017). African peer review mechanism. Annual Report. APRM South Africa Second Generation Review Report. (2022). South Africa second generation review Report. African Peer Review Mechanism Key Highlights. Bakken, B., & Wang, J. (2021). The changing forms of corruption in China. Crime Law and Social Change, 75, 247–265. https://doi.org/10.1007/s10611-021-09952-3 Cameron, D. (2017, December 13). Corruption: More than a cancer. Transparency international. Retrieved on July 4, 2022, from https://www.transparency.org.uk/corruption-more-cancer Chitale, S. (2021, March 19 ). Increase in femicide in South Africa. IR insider. Accessed on June 13, 2022, from https://www.irinsider.org/subsaharan-africa-1/2021/3/19/increase-in-femicidein-south-africa Fagbadebo, O. (2021). A discourse on the on the plight of South African women in the face of abuse and neglect. Law Democracy & Development, 25(Special Issue), 95–118. https://doi.org/10. 17159/2077-4907/2020/ldd.v25.spe5 Francis, D., & Webster, E. (2019). Poverty and inequality in South Africa: Critical reflections. Development Southern Africa, 36(6), 788–802. https://doi.org/10.1080/0376835X.2019. 1666703 General Household Survey. (2019). General household survey 2019. Statistical release P0318. Department of Statistics, Republic of South Africa. International Council on Human Rights Policy (ICHRP). (2009). Corruption and human rights: Making the connection. ICHRP. Retrieved on June 12, 2022, from https://ssrn.com/abstract=1 551222 Khambule, I. & Siswana, B. (2017). How inequalities undermine social cohesion: A case study of South Africa. G20 insights, 16 may. G20 Germany dialogue. Retrieved on April 3, 2022, from www.G20-insights.org Mantzaris, E. A. (2017). Corruption as a violation of basic human rights in South Africa and Russia. African Journal of Public Affairs, 9(8), 15–30. Mubangizi, J. C. (2020). A human rights-based approach to fighting corruption in Uganda and South Africa: Shared perspectives and comparative lessons. Law, Democracy and Development, 24(1), 225–247. https://doi.org/10.17159/2077-4907/2020/ldd.v24.10 Myeni, T. (2021, June 5). ‘Our bodies are crime scenes’: South Africa’s murdered women. Aljazeera. Retrieved on June 13, 2022, from, https://www.aljazeera.com/features/2021/6/5/ our-bodies-are-crime-scenes-south-africas-murdered-women

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Patel, L. (2022, March 18). Social security is the bedrock of South Africa’s human rights protection. But there are gaps. The conversation. Retrieved on June 12, 2022, from, https://theconversation. com/social-security-is-the-bedrock-of-south-africas-human-rights-protection-but-there-aregaps-179484 SA News. (2022, May 31). Unemployment rate drops to 34.5% in first quarter of 2022. Retrieved on June 23, 2022, from, https://www.sanews.gov.za/south-africa/unemployment-rate-drops-34 5-first-quarter-2022 South Africa's APRM Programme of Action. (2009). African peer review Mechanism. First Report on the Implementation of South Africa’s APRM Programme of Action. Stats-Sa. (2020). Crimes against women in South Africa, an analysis of the phenomenon of GBV and Femicide: An overview of the prevalence of crimes against women in the country and the conditions that exacerbate GBV leading to Femicide. Department of Statistics, Republic of South Africa. Stiftung, B. (2022). Bertelsmann Stiftung’s Transformation Index (BTI) 2022 Country Report–South Africa. Bertelsmann Stiftung. The World Bank. (2022). Inequality in southern Africa: An assessment of the southern African customs Union. The World Bank. Vrushi, J., & Kukutschka, R. M. B. (2021, January 25). CPI 2022: Corruption, human rights and democracy. Transparency international. Retrieved on June 19, 2022, from https://www. transparency.org/en/news/cpi-2021-corruption-human-rights-democracy World Inequality Lab. (2022). World inequality report 2022. Retrieved from https://inequalitylab. world/en/

The Voice of the Voiceless: The State of Civil and Political Rights in South Africa Zwelinzima Ndevu

1 Introduction The process leading to a free, democratic South Africa was launched in the early 1990s with the lifting of the ban on liberation movements and the eventual release of political leaders. After the successful popular democratic elections of 1994, South Africa worked diligently to erect a thorough constitution in 1996, which later became the nation’s highest law as a constitutional democracy. Chapter “A Critique of South Africa’s Quest for Accountable, Efficient and Effective Public Service”, which comprises a variety of human, civil, and political rights, including The Bill of Rights, interpretation, and application of rights within the framework of the Constitution (RSA, 1996a, 1996b), is one of its main pillars to advance the realization of the constitution’s vision for human dignity, equality before the law, freedom and security, privacy, freedom of religion, belief, and opinion, and freedom of assembly, protest, picketing, and petition. The Bill of Rights, which outlines people’s guaranteed rights in precise words, was enshrined in Chapter “A Critique of South Africa’s Quest for Accountable, Efficient and Effective Public Service” of the Constitution in response to the desire to democratize and liberalize legal systems. The adoption of civil and political rights as the first step in establishing South Africa’s human rights culture made this necessary. The Constitutional Court was expected to have a significant impact on the entrenchment of the human rights culture because it was a crucial component of the transformation agenda.

Z. Ndevu (*) School of Public Leadership, Stellenbosch University, Stellenbosch, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_9

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2 The State of Civil and Political Rights in South Africa: Emerging Insights Legal safeguards against all sorts of oppression, known as civil and political rights, have been widely accepted around the world. The roots of rights can be found in the actions of governments, powerful people, or institutions that are seen as oppressive, even if these are typically hidden in foundational or genesis legends that assume an abstract, timeless look. Among the most prevalent civil rights is the right to personal security, which includes protections for persons who are accused or suspected of committing crimes, the ability to vote and participate in democratic political processes, as well as freedom of expression, association, and religion. If civil and political rights are not guaranteed to all citizens, they lose their significance. However, acceptance of rights advancements has proven to be more challenging than necessary, especially in nations where rights are frequently expressed in absolute terms, due to the failure to recognize competing rights and the interdependence of rights, interests, privileges, and expectations. Concerns over whose rights are protected, how those rights are defined and formulated, and how they are upheld have been among the most problematic issues surrounding civil and political rights. The establishment and enforcement of civil political rights appear to be most successful when done through popular and participatory methods, and public awareness of the significance and background of these rights is perhaps the single most important component in ensuring their continuous viability. The 2021 report by Freedom House scores South Africa 79 out of 100. This is a commendable showing by South Africa that ranks the countries among those perceived to be free and democratic in the conduct of their governments. Notable positive remarks include: • South Africa’s elections are still considered to be free and fair—all political parties duly registered with and approved for political activities concerning elections by South Africa’s Independent Electoral Commission (IEC) participate in elections in national, provincial, and municipal spheres. Though some accused Terry Tselane, former deputy chairperson of the IEC and ANC liberation stalwart, of contributing to ANC’s electoral misfortunes that saw the liberation party losing key metros (Johannesburg, and Tshwane) for the first time since it came to power; there were no confrontations beyond words expressing dissatisfaction and blamegame, and the opposition coalitions forming municipal governments in the cities were a true test of IEC’s independence and ability to run free and fair elections that are accepted by all stakeholders, including the populace. This reaffirms and highlights South Africa’s commitment to political pluralism and participation— key principles for free and fair regular elections to sustain representative and participatory democracy. • Participation in the elections as a candidate or voter is open to all duly registered to participate, regardless of their colour, creed, or gender orientation—beyond the fact that the Constitution (RSA, 1996a, 1996b) prohibits any form of

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discrimination and guarantees full political rights to adult citizens, women are represented in different field of local government as mayors, ward councillors, members of the National Council of Provinces, and the National Assembly. For example, of the 400 seats in parliament, no less than 45% are occupied by women and two out of the nine premier posts are occupied by women. • Independent judiciary—the Judicial Services Commission recommends to the sitting state president the appointment of Constitutional Court judges based on merit and redress efforts. Even more commendable is that the process to screen and interview the candidates is transparent and often broadcasted on public broadcasting platforms. This is important in ensuring the credibility of the process and granting access to information to the public readily and reliably. • Vibrant civil society and media—South Africa is characterized by vibrant civil society organizations and media outlets. These entities cover a broad spectrum of issues such as awareness campaigns, information sharing, promoting human rights, ensuring participatory democracy in issues of public interest, public accountability, and so forth. However, irrespective of which sector they operate or what issue is of key interest to them, what is similar to all is their robustness—a character that could cast them as adversarial in the eyes of the ruling elite. Despite the success as noted above, there are areas of concern that South Africa need to put concerted efforts on. The first is the rise of political killings (Evans, 2020). Although political killings were high during apartheid and subsided in the early to mid-1990s, political killings have seen an alarming increase, with Kwa Zulu Natal (KZN) being the epicentre of the scourge (Bruce, 2014: 1–3). Accordingly, the KZN provincial government appointed the advocate Moerane to investigate political killings in the province. The Moerane Commission’s terms of reference required that it make recommendations “to address the underlying causes giving rise to the murder of politicians in KZN. . . and in respect of the prevention of future incidents . . . ensure the successful investigation and prosecution of the perpetrators (Burger, 2018).” The commission unearthed outpouring wrathful evidence that led to Moerane concluding that political corruption is endemic to South African politics, “and that’s the cause of the violence.” That corruption is the backbone of South African politics which is not far-fetched. Since the State Capture Commission—the commission chaired by Judge Zondo to investigate the slew of accusations of political corruption levelled against various individuals and entities—there appears to be sufficient ground to argue that corruption has reached systemic levels as it is deeply entrenched in the workings of many entities in South Africa. Systemic corruption undermines the agenda-setting process that culminates into policy directives as those who use state resources for private gain gear policy direction and general functioning of state arms towards their own interests or at least their families and close associates (Onishi & Gebrekidan, 2018), instead of popular demands and mandates to the elected by the voters. The United Nations Human Rights Committee Report (2016) on South Africa noted with concerns numerous issues. Of particular interest, is the use of mechanisms such as RICA and the Secrecy Bill to conduct illegal surveillance of especially

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promoters of human rights and activists in general communications. Not only does this violate the right to privacy and equity rights as provided in Chapter “A Critique of South Africa’s Quest for Accountable, Efficient and Effective Public Service” of the Constitution (RSA, 1996a, 1996b) but serves as threat to the very principles of participatory democracy and representative democracy informing South Africa’s democratic regime. Without the Information Regulator that is yet to be appointed, state actors can meet violations such as invasion of privacy on the populace, especially critical voices. The case of amaBhungane’s Sam Sole whose phone was tapped while conducting his investigative journalistic activities on issues implicating powerful organizations and individuals is a classic example (Sole, 2017). Although South Africa has legislative mechanisms such as the Promotion of Access to Information Act (2 of 2000) (RSA, 2000), due to the nature of a multifaceted system of governance combining elements of a federal system with the overarching unitary state that characterizes South Africa, procedures to exercise the right to information through it could be laborious and bureaucratic. To a population characterized by a lack of resources, a lengthy laborious and bureaucratic process could discourage people to follow through. As noted by the South African Human Rights Commission (2018): “Poverty and inequality perpetuate exclusion and the inability of the majority of the country’s population to access political and economic institutions while influencing social change that prioritizes human rights.” This observation by SAHRC illustrates how inextricably linked socio-economic issues are, and indeed, how issues of inequalities and poverty inhibit civil and political rights in practice. Consequently, whatever efforts are garnered, and interventions made, it must be borne in mind that socioeconomic issues require holistic approaches that appreciate complexities that are brought with by their interconnectedness. The following section makes recommendations on how South Africa could improve its ability to promote and protect civil and political rights.

3 Freedom of Association Freedom of association is one of the fundamental liberties protected by Chapter “A Critique of South Africa’s Quest for Accountable, Efficient and Effective Public Service” of the Constitution. Its goal is to acknowledge the social aspect of human activity and to encourage collaboration among people in pursuit of shared objectives. Three categories of activity are shielded by the freedom of association: • Associating with others to establish groups. This indicates that a group of individuals can form without interference from the government. • Working together to exercise other constitutional rights, privileges, and obligations; in other words, the government cannot impede a group’s efforts to exercise other fundamental rights.

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• Working together to compromise, negotiate, and counteract the might of larger groupings of individuals. This is especially true for groups that include vulnerable individuals, like employees. Their right to associational freedom is safeguarded. The distinction between freedom of association and other fundamental rights is that the former does more than only safeguard an individual’s actions. Instead, it safeguards group actions that an individual cannot carry out alone. This acknowledges the possibility for a group of individuals to acquire “a life of its own” and needs that go beyond those of its members. Thus, the right to freedom of association encompasses both the group and individual rights. The topic of freedom of association is frequently brought up in relation to employee and trade union associations. Courts have ruled that employees have the freedom to band together to achieve shared working objectives, including the freedom to engage in collective bargaining. However, it is vital to remember that this right only defends the negotiation process, not a specific result. Employees have the right to organize, make demands of their employer, conduct conversations to obtain their objectives, and, if necessary, to go on strike. Employers in the public sector should meet and discuss demands with workers. However, employees do not have a right to a certain form of negotiation. In essence, negotiation must occur, but the process itself is not protected. Employers are also required to negotiate, but they are not required to accept any specific terms or conditions. The freedom of association has restrictions, just as other Charter rights. For instance, it does not shield a group’s violent behavior. As a result, a person who joins a terrorist group is not protected by the freedom of association from, say, being deported because of their involvement. Intimate and familial connections are the two examples of specific relationship kinds to which the freedom of association does not apply. Freedom of association is also subject to reasonable limits that the government may place on it and justify under chapter “A Critique of South Africa’s Quest for Accountable, Efficient and Effective Public Service” of the Constitution. For instance, if workers provide important services to society, like medical or other emergency services, governments may restrict their ability to strike.

4 Role of Civil Society The South African model offers a unique space for civil society to play a supervisory role over democratic institutions, watch over human rights, and empower citizens— especially the poor, disadvantaged, and excluded—with the means to be aware of and express their rights. Since 1994, civil society organizations have kept the democratic government in check. However, defending democratic rights has frequently been expensive. The actions of civil society organizations and activists to hold government and leaders

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accountable have frequently come under fire from anti-democratic elements within the ruling party, who claim they are fronts for either apartheid-era organizations or foreign governments. Civil society demonstrated its capacity to bring about political change by playing a significant role in the ousting of Zuma. Civil society organizations sued former president Zuma in reaction to multiple incidents of corruption and exploitation of public institutions for private gain. Civil society has long opposed the previous president of South Africa, Mbeki, for his refusal to provide HIV/Aids treatment in public hospitals, his claimed lack of consultation, and his marginalization of critics. Mbeki’s opponents effectively used the wave of anti-Mbeki action by civil society organizations at the ANC’s 2007 Polokwane national conference to organize and prevent his re-election as party leader. In 2017, a successful legal challenge spearheaded by a group of CSOs prevented the Zuma-led government from implementing a nuclear agreement with Russia. This agreement would have been severely detrimental to the economic future of our nation and would have cost taxpayers trillions of Rand. In the 1980s, civil society organizations (CSOs) were highly motivated and mobilized to confront the state’s anti-democratic practices, repression, and discriminatory laws. They still find themselves in the position of fighting the state’s inability to appropriately protect the rights of the populace today. In a nation with high levels of illiteracy where dishonest political, corporate, traditional, and religious leaders have profited from the underprivileged’ lack of knowledge, civil society organizations have also actively educated residents about their rights.

5 Political Parties Political parties play a key role in the effectiveness of representative democracy by promoting both public participation in politics and elected officials’ accountability to their constituents. Political parties are once again of utmost importance on the continent thanks to the revival of multi-party democracy in Africa from circa 1990. Despite their significance, voters find it difficult to find information about the parties and candidates. Similar to South Africa, many other African countries also have political parties, elections, and political leaders who are unable or unwilling to uphold their promises. The neopatrimonialism system employed by these cultures’ political leaders has had such a detrimental impact that some academics have even likened it to the legacy of colonialism. A disenchantment between electorates, political parties, and elections has also resulted from the unfavourable experiences that millions of voters have had in democratic systems around the world because of the conduct of political parties during and after elections. Modern South Africa is also observable in this development. Even if parties are weak and recent democratic indices from Freedom House (2021) and the Economist Intelligence Unit (2017) both indicated that democracy is

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now eroding internationally, the majority of people on Earth today live in democracies. Even though some observers have referred to political parties and elections as “inextricable weeds in the otherwise well-designed democratic garden,” democracy cannot function without them.

6 Individual Rights Everyone has a right to life, equality, and human dignity under the Bill of Rights. Citizenship and security are rights that belong to everyone. Everyone has the right to be free from forced labor, servitude, and slavery; they have the right to demonstrate, picket, and petition. Apartheid was a government system of exclusion and discrimination that was imposed by a White minority-controlled government. For illustration purposes, Black people were not allowed to buy land outside of land reserves despite being a member of the indigenous population. The social and legal inequities connected with apartheid as seen by the international community, human rights organizations, and South Africa’s Black majority have been taken into account when several of the country’s anti-apartheid laws have been passed. The nation’s anti-apartheid message has been hailed as an outstanding representation of a Sub-Saharan country. In South Africa, equal educational opportunities are currently protected by the law. This body of law consists of the South African Schools Act, Act 84 of 1996, and the 1995 White Paper on Education and Training. There have been issues with how they have been implemented, and according to a study conducted in 2020 by Amnesty International, South Africa’s educational system is among the most unequal in the world, with the largest gap between the test scores of the top 20% of schools and the poorest 80%. The South African government pays close attention to the quality of higher education. Additionally, there is not a lot of racial integration in public schools. Even though integration is permitted, one race still dominates many schools. It is gratifying to see that from 3.7 million in 1996 to 11.6 million in 2016, a significant increase in South Africans aged 15 and older who finished Grade 12 has occurred recently. In reality, about 79% of Black South Africans live in rural areas. However, the government has not paid enough attention to the quality of education in these isolated communities. Rural education has issues with inadequate facilities, a lack of clean water, a lack of financing, and uninterested teachers. Due to poor amenities and insufficient electricity, some schools are not structurally stable and are at risk of collapse. Sanitary facilities are typically lacking in schools with more than 500 students, and some schools even lack any. In addition, many rural schools are situated in remote areas with limited access to potable water. Water is usually far distant and unclean, where animals bathe and drink. Additionally, kids without disabilities attending public schools are not compelled to pay fees, such as those for assistance. There are special education schools in

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South Africa, although they are few and have tuition requirements. Children must board or use expensive transportation because there are so few schools available. The UN Committee on the Rights of the Child expressed particular concern in 2000 over South Africa’s failure to comply with its commitment to provide free basic education. In South Africa, efforts are still being made to make elementary education free for all.

7 Conclusion As a result of South Africa’s past, ongoing evaluations are necessary to track progress toward the effective fulfillment of human rights. This is significant because it helps determine whether the post-1994 rights-based discourse has provided any substantial solutions for dealing with issues left over from the past. The nation is currently experiencing terrible levels of poverty, which makes it difficult for most of the poor to assert their rights. This is so that those who live in poverty can never fully exercise their civic and political rights. As a result, the issue of poverty transforms the nation’s nearly 30 years of new speech into perpetual political rhetoric and an acute paradox. What purpose do appealing legal regulations serve if they cannot improve people’s lives? What is apparent is that, in theory, the current legal rules have done little more than stabilize the socio-political environment. This means that the “right to vote” and the ability to choose the government are among the least exercised rights and that socioeconomic equality and human dignity are not enjoyed by the majority of people in the country because the wealth still belongs to a small, privileged group. Political killings and any connected crimes are officially condemned by the state and all three branches of government, including political parties and civil society organizations to increase the volume of public complaints to help put an end to political assassinations. Facilitate the identification and elimination of corruption in government departments by educating civil servants about corruption and corrupt practices through workshops and training programs. To help with the Promotion of Access to Information Act (2 of 2000), the national government will contact tertiary institutions of education and research (RSA, 2000). On-going initiatives to educate a wider populace about good citizenship and how to participate in democratic institutions is required. It is commonly accepted that the defence of personal (and group) preferences and freedoms is related to the defence of civil and political rights, such as the rights to equality, life, human dignity, freedom and security of the person, protest, privacy, and freedom of expression. Recent events in the public discourse have further highlighted the significance of this protection.

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References Bruce, D. (2014). Political killings in South Africa: The ultimate intimidation. Institute for Security Studies. Policy Brief, 64, 1–6. Burger, V. (2018). Moerane Commission: Will the truth become a casualty of political expediency? Elitsha (online). Accessed Sep 21, 2022, from https://elitshanews.org.za/2018/04/17/moeranecommission-will-the-truth-become-acasualty-of-political-expediency/ Evans, G. (2020). Why political killings have taken hold–Again–in South Africa’s KwaZulu-Natal. The conversation [Online]. Accessed Apr 24, 2021, from https://theconversation.com/whypolitical-killings-have-taken-hold-again-in-south-africas-kwazulu-natal-143908 Freedom House. (2021). Freedom in the World 2021: South Africa. Freedom House. Onishi, N. & Gebrekidan, S., (2018). Gupta brothers’ rise and fall, the tale of a sullied ANC. [Online]. Accessed Apr 23, 2021, from https://www.nytimes.com/2018/12/22/world/africa/ gupta-zuma-south-africa-corruption.html Republic of South Africa (RSA). (1996a). The constitution of South Africa. Government Printers. Republic of South Africa (RSA). (1996b). Electoral commission act (51 of 1996). Government Printers. Republic of South Africa (RSA). (2000). Promotion of Access to Information act (2 of 2000). Government Printers. Sole, S. (2017). Analysis: Inside amaBhungane’s landmark ruling on surveillance. amaBhungane (online). Accessed Sep 21, 2022, from https://amabhungane.org/stories/analysis-insideamabhunganes-landmark-ruling-onsurveillance South African Human Rights Commission. (2018). Annual report for the year ended 31 March 2018 Republic of South Africa: . UN Human Rights Committee. (2016). Advance unedited version: Concluding observations on the initial report on South Africa. United Nations Reports.

An Assessment of Government Commitment to the Promotion and Protection of Women’s Rights in South Africa Meron A. Okbandrias

1 Introduction South Africa has made significant advancements in relation to the legislation, policies, advancement of gender machinery and the role of women in decision making. It is specifically lauded for the legislative promotion and protection of the rights of women. The last 20 years have seen multiple legislations that promote and protect the rights of women. In addition to being enshrined in the Constitution, gender issues are promoted by the Employment Equity Act of 1998, South Africa’s Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, Criminal Law Act of 2007 and Domestic Violence Act of 1998, among others. The National Policy Framework for Women’s Empowerment and Gender Equality (2000), the Employment Equity Act (1998), the Promotion of Equality and Prevention of Unfair Discrimination Act (2000), the Women’s Empowerment and Gender Equality Act (2014) and the National Development Plan 2030 all advocate for gender equality. The implementation of some of these legislations has been inadequate. Structural poverty, patriarchal cultural systems, societal norms and behaviors undermine the rights of women. Some of the most pervasive challenges facing women in South Africa, as indicated in the second APRM report, can be summarised as follows: • Especially, black women remain to be the face of poverty and shoulder the social and economic burden as a result of inequality. • Rural women suffer sustained marginalisation and oppression as a result of a cultural context, system wherein customary practices dominate. M. A. Okbandrias (*) School of Government, UWC, Cape Town, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_10

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• Women are exploited and marginalised from the formal economy, paid less and performing minimally paid work. • The pandemic of gender-based violence in society at large is driven by sexism, patriarchy and a culture of impunity. • Insufficient access to essential services as women suffer more as a result. • Women have a higher incidence of HIV/AIDS and shoulder its burden in a society. Some of the above problems are structural and dependent on the socioeconomic conditions of the country. Nevertheless, there are specific concerns in the promotion and protection of women that can be addressed in the short and medium term. These are women’s challenges with poverty, hunger and lack of dignified living, the number of women in management and gender-based violence and femicide (GBVF).

2 Women’s Rights in International Human Rights Regime Generally, the fundamental rights and freedoms that are captured in each of the 30 Articles in the United Nations General Assembly’s (1949) Universal declaration of human rights serve as a universal claim for women’s suffrage (United Nations General Assembly, 1949). The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child also addressed several issues relating to the economic, social and cultural rights of women and children across the globe (Hellum, 2021; Jahanghiri & Bighash, 2021; Octavianus, 2021). CEDAW proscribes all forms of exploitation and oppression against women irrespective of cultural or ethnic background (Currie & Douglas, 2021). According to the Africa Governance Report on the promotion of African Union Shared Values released in 2019, the AU human rights laws are stipulated in some instruments which include the Solemn Declaration on Gender Equality in Africa (Yankah, 2021), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Chenwi, 2022). Arising from the foregoing, this paper reviews the African Peer Review Mechanism (APRM) in an assessment of government commitment to the promotion and protection of women’s rights in South Africa. However, the realisation of women’s rights faces multiple challenges despite the robust constitutional and legislative instruments of women’s rights. Essentially, the African Peer Review Mechanism (APRM) was set up in 2003 under the framework of the New Partnership for Africa (NEPAD) Heads of State and Government Implementation Committee (HSGIC) (Cilliers, n.d.). The APRM was designed as a viable platform to facilitate the effective monitoring of performance in governance among Member States (The African Union Commission, n.d.). Thus, the principal focus of the APRM borders on the smooth adoption and implementation of policies, practices, standards and standards of governance to stimulate quicker

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regional and continental economic integration, economic development, political stability, as well as sustainable development (Killander, 2008). Moreover, the performance and progress of each member state are carefully evaluated with the aid of four thematic dimensions which include corporate, social, economic, political and democratic governance and management, as well as socioeconomic development. According to The African Union Commission (n.d.), 35 AU Member States have membership in the APRM following their joint ratification of its Memorandum of Understanding in June 2016. Côte d’Ivoire, however, emerged as the most recent member state after becoming a member of the APRM in January 2015. The African Union Commission (n.d.) further reveals that 17 of the member states have successfully carried out their self-evaluations and the Forum has peer-reviewed their assessment reports. Similarly, 3 of the member states including Senegal, Djibouti and Chad have successfully carried out their self-evaluations and their reports are now awaiting a peer-review by the Forum, an exercise that is scheduled to take place at the next APR Forum.

3 The African Peer Review Mechanism Report on South Africa The APRM report on South Africa was openly published on 15 December 2007 (Institute of Security Studies, n.d.). The salient issues captured in the 380-page document include the country assessment report by the APR panel of well-known individuals, the various feedbacks relating to the government, in addition to the outcomes of the meeting of the APR Forum in Accra, Ghana, in July 2007 on various issues that border on the African Heads of States. The APRM report on South Africa captured 18 best practices that make the country an exemplar to other member states. The identified best practices centre around innovations, particularly concerning multi-purpose community centres, the black economic empowerment charters as well as the Mzansi bank account. Nevertheless, the report unveiled some ill practices such as high levels of gender-based violence, racism, under-representation of women in the private sector as well as incidences of xenophobia. The South Africa Report on the implementation of the APRM assessments from Civil Society published in June 2011 captured the significant developments accomplished in implementing the Domestic Violence Act 116 of 1998 which prohibits all forms of violence against women. The summary of the report is presented as follows: (a) South Africa loses ZAR 3 billion worth of economic output annually as a result of violence against women. (b) To address such ill-treatment against women, the government has set up the Ministry of Women, Children and Persons with Disabilities intending to reinforce the promotion, protection and realisation of the rights of these vulnerable

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individuals. For instance, the first segment of the National Register for Sex Offenders Government was implemented in mid-2009. (c) Despite the measures taken by the South African government to address genderbased violence, there are still some challenges that could be seen as the nastiest forms of vehemence against women in South Africa. (d) The South Africa Report on the implementation of the APRM views revealed that even when cases involving violence against women are reported, criminals are often able to bribe their way out of the criminal justice system.

4 APRM Report on South Africa: 2021 About the Promotion and Protection of the Rights of Women This section covers the summary of the 2021 APRM report on South Africa with respect to the promotion and protection of the rights of women. As mentioned above, the country has made significant progress in gender rights. This aligns with the study of Matotoka (2021) who maintains that South African women have in recent times occupied various managerial positions in the nation’s private sector more than ever witnessed. Also, South Africa has been extolled for the legislative advancement and protection of the rights of women (APRM Report on South Africa, 2021). In fact, in South Africa, there have been a series of legislations formulated to address issues relating to the promotion and protection of the rights of women for the past 20 years. Aside from the fact that gender equality is a principal component of the South African constitution, this ideology is also strongly promoted by some aforementioned acts. Furthermore, the pursuit of gender mainstreaming has been well accentuated in various South African legislations. Despite the various legislative provisions for the promotion and protection of the rights of South African women, the APRM report on South Africa (2021) declared that the execution of some of these legislations still leaves more to be desired. The above position is a sequel to the fact that structural poverty, patriarchal cultural systems and societal norms and behaviours have continued to neglect the rights of women in South Africa. Masculinity and misogyny play a major role in women’s rights. Men, for cultural and other reasons, believe that they are superior to women and own them as well. It is important to consider power relations and contribute to whether we are considered successful and acceptable, in addition to how valued our life is in the eyes of society. The brief (2020) also states, “Globally, women earn less, save less, hold less secure jobs, and are more likely to be employed in the informal sector. They have less access to social protection and are the majority of single-parent households”. As a result, their capacity to deal with economic shocks is diminished. The UN policy brief indicates that the COVID-19 pandemic has exacerbated income vulnerabilities, social insecurities and gender-based violence across the world (2020). As a whole, the pandemic has worsened the conditions for women.

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The third APRM report includes the COVID-19 period and pre-covid. In line with the second APRM report, some of the most prevalent obstacles encumbering the promotion and protection of the rights of women in South Africa are summarised as follows: (a) Women account for the highest number of individuals who live with or bear the burden of HIV and AIDS in the country. (b) Women represent the highest number of individuals subjected to labour exploitation in South Africa. This can be well explained in the area of economic marginalisation, poor wages compared to their male counterparts who do the same work. (c) The report revealed that the highest form of continued cruelty, subjugation and marginalisation is associated with rural South African women. This situation is compounded by the prevailing cultural settings and practises. (d) Women lack access to basic services which forces them to close the gap. (e) The societal ill of gender-based violence is reportedly triggered by a culture of impunity, attitudes and beliefs of the people, patriarchal norms, as well as pervasive sexism across South Africa. (f) Black women in South Africa account for the highest number of individuals who are trapped by poverty and suffer the most as a result. It can be asserted that a number of the challenges discussed above take structural form and are largely influenced by the prevailing socio-economic circumstances in the country. Nonetheless, some of these challenges that have a direct bearing on the rights of women necessitate both short- and medium-term solutions. These specific concerns border on women’s challenges that often manifest in the form of hunger, lack of dignified living, poverty, as well as the proportion of women in management and GBVF.

5 Women’s Representation in Government and the Economy There is sustained progress in placing women in decision-making structures in government in South Africa. According to a gender audit done by Beyond Numbers (2019), after the 2019 local government elections, the country realised a 50% representation of women in the cabinet, 44% in the National Assembly and 36% in the National Council of Provinces. Women make up 37% of local councillors declining from the 44 of the 2017 local government elections. In 2017, of the 257 mayors, 107 (42%) were female but current data are not available. The Traditional Leadership and Governance Framework Act 41 of 2003 makes provision for women to constitute at least 30%. However, it is a structure that is particularly hard to transform.

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South African women occupy: strategic national portfolios such as Ministers of International Relations and of Defence, Speaker of the National Assembly, Public Protector, as well as regional and global positions. The country, therefore, does relatively well in terms of women's representation in decisionmaking structures. There are, however, still gaps in translating these gains in representation into substantive changes in the quality of life for the vast majority of South African women (Presidency, 2020a).

Women’s position in the economy, however, requires attention. According to the Quarterly Labour Force Survey (Stats, S.A., 2018a, 2018b, 2018c, 2018d, 2018e), the rate of unemployment among women in the second quarter of 2018 was 29.5%, compared to 25.3% among men. Since the South African labour market is more favourable to men, more women are forced into unpaid work. Women occupied 44% of skilled posts in 2017, despite being progress, it has not increased since 2002. Only “24% of heads of state-owned enterprises and only one female CEO) in South Africa’s top 40 companies in 2018 (in 2012 there were two); only 22%, of 373 executives, in the top 40 companies (in 2012 it was 17%), and 32% at board level” (Stats, S.A., 2018a, 2018b, 2018c, 2018d, 2018e). Generally, South Africa is often praised worldwide for its gender representation in government. For instance, on 31 August 2021, Smout (2021) in Daily Maverick reported that in 2016, about 33% of ward councillors elected in South Africa were women. In the same way, women also accounted for 48% of proportional representation Councillors. As of June 2021, South Africa was ranked by the InterParliamentary Union as the 11th in the World for women’s representation at a parliamentary level, as well as the second-highest in Africa (trailing behind Rwanda). In the same way, “the World Economic Forum’s annual Global Gender Gap Report scored South Africa 14th in the world in terms of political empowerment in 2021” (AllAfrica, 2021). As remarkable as these accomplishments may be, they are not a true reflection of the country’s international commitments to gender equality where the rights of women remain pivotal. For example, Smout (2021) noted that in 2008, South Africa signed the Southern African Development Community (SADC) Protocol on Gender and Development and endorsed it in 2012. The provision of Article 12 of the protocol borders on the need for the country to accomplish a 50% representation of women in the public and private sectors’ management by 2015. However, reports show that 6 years after the expected implementation date of the Southern African Development Community (SADC) Protocol on Gender and Development, the country has not been able to accomplish the targeted 50:50, nor is there any active measure in place to drive the objective through the various political parties in the country. The case is worst at the grassroots level where political inequality thrives (Smout, 2021). Daily Maverick (2021) specifically documented that: “The local level is the most difficult for women to function as politicians, explains Professor Amanda Gouws, Professor of Political Science and Sarchi chair in Gender Politics. They face sexism, patriarchal attitudes, and sexual harassment. It is very difficult for them to make a difference by putting women’s issues on the agenda. More often than not, what

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determines whether women are elected and represented at any level of government is party lists and these rarely include equal numbers of men and women. Only two parties, the ANC and the EFF, have voluntary quotas for party lists but in the last local government elections, even these parties failed to meet their own goals.” Dr. Thabo Rapoo, Head of Research at the Commission for Gender Equality, maintained in Smout’s (2021) Daily Maverick article that the key barrier is internal party-political practices. He argues, Local government structures are ward-based and the ward position is the one that women are finding it hard to break through—proportional representation (PR) positions are defined by the party, so they can determine who is on the list. Local contexts and constituencies that are patriarchal will make it more difficult for women to win positions or nominations to ward and local levels. Those local party structures that candidates have to go through and be vetted still tend to be dominated by males or male power brokers who make it difficult for them to get through such structures. Patriarchy in parties reflects what is on the ground.

According to the 2016 statistical report by Gender Links, there were a lot of gender gaps in the country. Though the share of women on party lists witnessed a rise from 37% in 2011 to 41% in 2016, at the ward level, it was further revealed that political parties recorded a smaller number of women candidates (Hicks et al., 2016; Africa Barometer, 2021). According to Hicks et al., in Gender Links (2016), “this is singularly responsible for SA not achieving gender equality in the elections.” Women candidates under the platform of Cope accounted for 44% of the ward candidate lists (the highest proportion), while other political parties collectively accounted for less than 40% of the women candidates. It was further revealed that the IFP recorded 24%, while the FF+ had 22%, representing the lowest representation of women in South Africa. At the PR level, there are only two political parties that account for a large number of women on their lists. These include the ANC having 61% as well as the EFF, which accounts for 60% of women on their lists (Hicks et al., 2016). It is, however, argued that the voluntary quota associated with the ANC has no practical significance and most of the other political parties having below 1% of the vote are too small as they may only account for one or two female candidates during political participation. The system of the voluntary quota has the propensity to compel political parties such as the EFF and the DA to absorb more female candidates on their lists. Hicks et al. (2016) further revealed that in the 2016 elections, on the ward lists, the DA accounted for 35% of female candidates, while on their PR list, about 34% of women candidates were accounted for. The complex question is now hinged on whether those women who are represented protect and enhance the movement for gender equality. Another principal issue is whether these women have to promote the gender agenda. Moreover, the gender pay gap is an issue. Women have made sustained progress in the post-apartheid labour market. Therefore, the gender gap has narrowed but has some distance to close the gap. In its 2018 Gender Pay Gap Report (2018), the WEF ranked South Africa 19th overall in terms of gender gap equality, with a slight decline in gender wage equality at 117th (from 114th in 2017).

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The country has a median gender pay gap of between 23% and 35% despite serious efforts to address it (Bosch & Barit, 2020). With the introduction of antidiscrimination legislation and affirmative action, the expectation was for the gap to close (Omotoso et al., 2021). This is an area that requires active cooperation between the government and the private sector.

6 Women’s Challenges with Poverty, Hunger and Lack of Dignified Living In the context of South Africa, it has been acknowledged that women and children are unfortunately victims of hunger (Oxfam, 2014). This implies that women and children account for the largest proportion of individuals who are most hit by poverty, hunger and lack of dignified living. This position was validated in the 2021 second APRM report on South Africa where it was reported that women in South Africa account for the highest number of individuals who are trapped by poverty as well as those who bear the social burden stemming from high levels of poverty and inequality in the country. StatsSA (2019) indicated that female-headed households living below the “upper-bound poverty line (UBPL) was 16.9% points more than that male-headed households.” Judging from the South African General Household Survey (2012), femaleheaded households have a higher likelihood of facing food insecurity/shortage (21%) when compared with their male-headed families (15.8%); again, the survey report revealed that women are associated with a higher probability of experiencing a financial shortage, suggestive that they are more likely to be short of cash to buy food (27.2%) as against their male counterparts (19.3%). To add to the ordeal, women are reportedly able to cut the size of meals as well as have the proclivity to skip meals (25.1%) as against their male counterparts (17%). This is due to their inability to access adequate food and nutrition for daily healthy living (Stats SA, 2012). Again, when food is served, a larger portion is allocated to males compared to their female counterparts. In all FGDs during the General Household Survey (2012), it was gathered that the male head of household always gets a greater percentage of food, occasionally at the expense of other household members such as women and children. Nevertheless, in the course of the General Household Survey, some key informants in Bloemendal and Swellendam submitted that when the household is short of food, there is a higher probability that the children’s interests will be taken into consideration from the youngest to the oldest before the father and mother will be served. There are also instances where women intentionally forgo their meals to ensure that their children and other members of the immediate household have something to eat (Oxfam, 2014). There are also instances where women rely heavily on social welfare in the form of grants, especially to take care of the children and the entire family. In such regard, it becomes extremely difficult for them to survive as the sustainability of such grants

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or aid remains uncertain especially if they also have to cope with severe health challenges that may command a significant amount of money in the form of expenditures on medications and other hospital bills. One of the key informants who participated in the survey from the Nobody district of Polokwane was quoted as follows; “Even as I am speaking to you now, my husband is sick. From the social grant, I have to use the money to buy tablets for him.” During the survey, a ward councillor from the Nobody district of Polokwane also asserted that women account for the largest share of the brunt of food insecurity, while some men may choose to run away in an attempt to escape the economic hardship facing their families. The counselor further cited a Pedi proverb in favour of increasing the level of resilience among South African women; “A woman is brave enough to hold a knife even on the side where it cuts.” In 2017, Stats, S.A. (2018a, 2018b, 2018c, 2018d, 2018e) reported that 30 million people were living in poverty with 13 million being extremely poor. One in three female-headed households was likely to be poorer than male-headed households. Women in rural areas, especially, lack education, employment opportunities, access to financial resources, land, clean water and sanitation, and face harmful cultural practices. As a result of these factors, there is a lack of dignified living and structural poverty. A high number of South Africans are at peril of food insecurity. “Female-headed households tend to be poorer and more food insecure compared to male-headed households” (Omotoso et al., 2021). Despite extensive social-security net and efforts by the government to assist women to operate their own businesses through small business and cooperative support, many women still have inadequate income to have a dignified life and reach their full potential. External migrant women also continue to face discrimination in the form of barriers for accessing public healthcare facilities which are in contradiction to a constitutional commitment to serve all those who reside within South Africa. The inability of these women to access essential services such as affordable healthcare services, electricity, food and shelter adds to their challenge with poverty, hunger and lack of dignified living.

7 Gender-Based Violence The South Africa Report on the implementation of the APRM views from Civil Society published in June 2011 captured the significant developments accomplished in implementing the Domestic Violence Act 116 of 1998 that prohibits all forms of violence against women. Generally, Section 1(viii) of the Domestic Violence Act 116 of 1998 stipulates the various avenues for promoting and protecting those who suffer from domestic violence, irrespective of whether it is economic, emotional, physical and sexual. According to the South Africa Report (2011), the country loses ZAR 3 billion worth of economic output annually as a result of violence against women.

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To address such ill-treatment against women, the report established that the government has set up the Ministry of Women, Children and Persons with disabilities to reinforce the promotion, protection and delivery of the rights of these vulnerable individuals. For instance, the first segment of the National Register for Sex Offenders Government was implemented in June 2009. Despite these new measures taken by the South African government to address violence against women, there are still some challenges that could be seen as the nastiest forms of vehemence against women taking the shape of domestic and sexual abuse in South Africa. In line with the State of the Union Project (2010, p. 14) on the South Africa Report, “women’s rights continue to be violated in villages, at the workplace, in schools, and at home. They are routinely raped, sexually harassed . . . and denied their right to education.” Women are also victims of abduction, maiming, murder and rape, among other forms of violence again women (State of the Union Project, 2010). Most of the statistics that border on violence against women is hardly correct. Also, some individuals demonstrate that fears impede the reportage of rape occasions. This includes the fear that people will not believe the reported rape case. There is also the fear of not gaining physical access to police and other security forces as well as the fear of weak legal judgement and the credibility of the legal process. The South Africa Report on the implementation of the APRM views revealed that even when cases involving violence against women are reported, criminals are often able to pay for rape cases to be destroyed (The Centre for the Study of Violence and Reconciliation (CSVR), 2008). The official South African Police Service statistics on reported rape dropped from 69,117 in 2004/05 to 63,818 in 2007/08. The figure, however, rose to 71,500 in 2008/09. People Opposing Women Abuse and AIDS Legal Network (2010) noted that girls and young women account for the highest number of people who are common victims of sexual violence. It was further revealed that 65% of female victims of sexual violence are aged from 12 to 29 years. Furthermore, The Independent (2010) reported that South Africa witnesses the highest occurrences of rape globally and over one-third of young ladies are victims of sexual violence before attaining the age of 18 (Jewkes et al., 2009). A report from the Centre for the Study of Violence and Reconciliation (2011) revealed that in South Africa, women’s right to offer or refuse permission for sexual contact is one of the most frequently desecrated human rights. The effectiveness of the Domestic Violence Act now borders heavily on the extent of correct implementation by the South African Police Service. Combrinck and Wakefield (2009a, 2009b) earlier maintained that, despite the series of training received by the South African Police Service, the SAPS has not been adequately equipped to carry out the implementation of the Domestic Violence Act. This inefficiency is explained by the typical case of Marilyn White, who the law offered a protection order against her husband. The protection order provides that he (the husband) was restricted from gaining access to her (Marilyn White) place of residence (The South Africa Report on the implementation of the APRM views, 2011). When Mrs. White saw her estranged husband, she quickly notified the SAPS, who responded but failed to enforce the protection order on arriving at White’s

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residence. When the SAPS departed, Mrs. White was sexually assaulted by her HIV-positive husband. To address these kinds of crimes, the Sexual Offences and Related Matters Amendment Act (32 of 2007) and the National Register for Sex Offenders have been implemented. However, they have not had the necessary impact as they have not been implemented fully. Specifically, Section 43 of the Sexual Offences Act 32 of 2007 restricts employers from engaging individuals who have been imprisoned or are suspected to have been involved in sexual crimes to work with children or individuals with mental disabilities. Given the cases of rape in the country, it is correct to state that South African law enforcement agents, as well as institutions, need to intensify efforts to promote and protect women’s rights. The report of the People Opposing Women Abuse (POWA) revealed that “State agents and in particular, the current office of the presidency, [have] not only routinely failed to condemn violence against women, but in some instances [have] invoked African custom and tradition to justify and facilitate conditions exacerbating the violations of women’s rights” (People Opposing Women Abuse & AIDS Legal Network, 2010). South Africa has seen a lot of violence and it continues to undermine human development and positive social cohesion. South Africa, according to the 2018 Global Peace Index, is very violent as it is ranked 38 out of 163 with one of the highest murder rates in the world excluding a war zone. The 2018 (Stats SA, 2018a, 2018b, 2018c, 2018d, 2018e) and (Stats SA, 2019) Victims of Crime Survey reports revealed an uptick in crime levels for 2017/18 compared to the previous year, resulting in heightened security concerns. The levels of violence in South Africa have deepened the vulnerability of women and children. It is impossible to escape the constant report of violence in the media. In addition, black, poor and rural women bear the brunt of GBVF. The frequency and brutality of GBVF in South Africa are jarring. It is further exacerbated by the lack of accountability and impunity on the part of perpetrators and further victimisation of the victims at the hands of the criminal justice system. During 2018 and 2019, as a result of high-profile GBVF cases, South Africa recognised the escalating crisis of GBVF and its profound impact on the whole and this was made clearer during the dramatic rise in GBV in level 1 restriction (Medicins Sans Fronteieres, 2020). There is an urgency that this scourge demands a holistic approach to responding and ultimately eliminating GBVF. Furthermore, the duty of the state to fulfill its constitutional obligation is essential. The murder of women has decreased in South Africa in general in the past 6 years. There was an 11% increase in 2017/18 (Maluleke, 2018). After a push from society, NGOs and other interested parties, the South African government established an Emergency Response Action Plan (ERAP) on GBVF. This was a significant development by the current government to deal with the issue. This report looks at the progress that has been done in the promotion and protection of the rights of women in the last 4–6 years and further actions that need to be taken. It is going to discuss femicide and GBV using five key areas.

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Access to Justice for Victims and Survivors

The criminal justice system has been unable to respond to gender-based violence in South Africa adequately (Presidency, 2020a). The criminal justice failure can be seen in the low levels of reporting of GBVF, secondary victimisation and high levels of impunity that encourages the violence against survivors. The ERAP tried to improve sexual offences courts, “Thuthuzela Care Centres and the Family Violence, Child Protection and Sexual Investigation Units of the South African Police Service” (Presidency, 2020a) in response to the challenges and systemic failures to prevent such crimes. Eleven sexual offence courts were approved for the next financial year (Presidency, 2020a). In addition, it sought to ensure that the perpetrators of gender-based violence are aware of the full might of the law and bear the consequences of their actions. As a commitment of the government to prosecute offenders to the fullest might of the law, the President stated that the state will oppose bail and those found guilty should not be eligible for parole. The state’s capacity to investigate and prosecute has been improved, and sexual offences have been made a priority. The developments seen in this area for the past four years are human resource plan for domestic violence, sexual offences capability has been developed and over 300 policemen being deployed; Rape Kits are now available in all police stations. The Cold Case Task Team has made some progress by analysing over 785,000 cases and identified court presidents and chief magistrates to lead a “victim-centric justice system” in the targeted provinces and cities (Presidency, 2020b).

7.2

Change Norms and Behaviour Through High-Level Prevention Efforts

GBVF is not only the problem of women as it also involves men either perpetrators or victims of it. Males often grow and are groomed in a patriarchal system considering violence as a way of dominating women. A concerted effort has to be done to influence the norms and behaviour of boys and men. A media campaign, focusing on all public domains that also focused on men’s groups, offenders in prison, and the youth vulnerable in violence-plagued areas was introduced as an emergency response. Moreover, sensitivity training on issues of GBVF was provided focusing on individuals who work in the criminal justice system. Similar campaigns were launched in schools, college and university campuses. The Department of Women, Youth and Persons with Disabilities (DWYPD), launched a year-long public awareness campaign to address GBVF issues in partnership with other stakeholders (Presidency, 2020b). Moreover, the Government Communication Information System (GCIS) utilised media outlets to raise awareness. In addition, the Justice cluster (Under the Tree Men’s 11 Campaign) and the

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Department of Basic Education (scripted lessons on GBV and sexuality education) to raise awareness and communicate GBVF urgency to communities and schools (Presidency, 2020b).

7.3

Urgently Respond to Victims and Survivors of GBV

Often, survivors of GBV face secondary trauma which hinders them from wholly accessing the required support and justice, making a bad situation worse. The more important aspect is addressing the rights and needs of survivors. Responding to the victims of GBV has three pillars. The first, the pillar is the dignified reporting of crimes where there is no judgement. There are continuous awareness programmes and pieces of training on procedures on how to treat victims of GBV as mentioned above. For those working in the criminal justice system, the second pillar provides safety in the form of access to supportive services for victims and survivors such as shelters, care centres and legal aid that guarantees confidentiality, safety and survivor agency is critical. The third pillar has to do with providing justice. Perpetrators should receive the justice they deserve and not have the opportunity to threaten and harm survivors. Moreover, they escape justice through nefarious means. There is a need to close these gaps. There is a need for a range of legal and regulatory reforms in the National Assembly to reinforce the response to GBVF. Some of the progress made on this aspect over the last 5 years are six new TCCs sites were identified and others to be operational by 2021 and 200 social workers approved to provide psycho-social support services in the centres (Presidency, 2020b). Despite the police minister asserting that the number of gender violence cases dropped in the Latest Victim of Crimes Survey (2021), experts indicate it is public relations exercise by the minister. At beginning of the Covid-19 pandemic and lockdown resulted in a significant increase in reported GBVF cases. It has to do with changing dynamics of working from home and the financial and social vulnerabilities related to the realities of the pandemic. Although men were disproportionately affected with severe cases of Covid-19 and death as a result of Covid-19 complications, women are carrying the burden of caring for their loved ones and the economic burden of losing sometimes the sole breadwinner of the household.

7.4

Strengthen Accountability and Structures

One of the challenges is the uncoordinated manner in which stakeholders have been trying to address GBV in the country. The ERAP has attempted to address this issue by dealing with political will, poor planning and lack of resources. Fortunately, the current government has prioritised by the President and the Cabinet. Therefore, the executive and parliament have worked with all stakeholders to address this societal

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challenge (Presidency, 2020a). GBVF is complex and deals with cross-cutting issues that require coordination. It transects social, economic and cultural aspects and straddles the criminal justice system. That is why the multi-sectoral model was agreed to by the government and civil society calls for holistic cooperation and collaboration and active participation by people impacted by GBVF. The model is inclusive of people or groups with access to networks and resources that can positively affect sectors like health, legal/justice, psychosocial, etc. Local communities are an integral part of this model in shaping sustained responses and holding stakeholders accountable. The accomplishment of the goals of this model requires accountability and structures to respond to the challenges of GBVF adequately.

7.5

Economic Opportunities for Addressing Women’s Economic Vulnerability

GBVF exists within a complex social and economic reality that gives rise to structural poverty and economic inequality as a critical enabler of gender-based violence. It necessitates urgent attention as an integrated approach to address gender inequality in South Africa. Such efforts require sustained and prolonged intervention aimed at creating economic opportunities through employment, education and resources. Women’s ability to earn a living frees them from an abusive relationships as most often economic dependence poses a challenge for them. Therefore, addressing unequal economic power as a source for perpetuating abuse is imperative. As a result of the above reasoning, the government, for example, is dedicated to reaching its target of 40% of its procurement value focusing on women-owned businesses. These measures are crucial to a broader response to all forms of GBVF in South Africa that address basic structural drivers. The Interim Steering Committee (ISC) on GBV and all stakeholders worked closely with the Department of Planning, Monitoring and Evaluation (DPME) to track progress. “Relevant departments and civil society organisations submitted weekly reports to the interim structure and the ERAP identified a vital budget infusion of 1.6 billion in 2019/20” (Presidency, 2020b).

8 Areas that Require Further Improvement Despite the good progress that was made in achieving goals and targets in the last 3 years, many systemic and operational challenges remain to promote and safeguard the rights of women. The following recommendations would assist in this regard:

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1. Appropriate measures to enable economic opportunities for addressing women’s economic susceptibility (Presidency, 2020a). Local governments and DTI can play a major role in creating opportunities for women through different mechanisms. 2. Introduction of relevant regulatory and legal reforms for criminal justice in the legislature to reinforce the government’s response to GBVF. 3. Civil society organisations provide an invaluable service in supporting the victims and survivors of GBVF and there is a need to strengthen that capacity through partnership, training and financial support. DSD and the criminal justice system need to strengthen their relationship with appropriate accountability mechanisms. 4. There is a need for sufficient trained human resources to support the victims and survivors of GBVF in the criminal justice system. 5. To achieve behavioural change in society, a sustained and national awareness campaign is necessary on different platforms that target people of different ages. 6. Prioritisation and improved capacity to investigate and prosecute cases of sexual offences by the justice system. 7. Timely and successful investigation and persecution of GBVF cases by the criminal justice system. 8. There has to be pay transparency, especially in the private sector making gender differences in wages public. 9. Department of Labour to monitor the inclusion of women in middle and upper management in the corporate world and the government has to create incentives for companies to do so. 10. Better gender representation in Traditional Leaders, Supreme Court of Appeal judges, advocates and premiers.

9 Conclusion There is no doubt that wherever women are represented in political or economic affairs in substantial numbers under a conducive atmosphere, they often create longlasting impact in governance. Women’s equal participation in decision making can be seen as a democratic right, which is highly instrumental to accountable and open governance. The various findings of this paper are evident that South African women are still under-represented in various leadership positions. There is an ongoing valid equity argument challenging the call for women’s involvement in decision making. The argument centres on whether women’s involvement in the decision-making process in the country presents any significant difference or not (Morna, 2004). In the submission of Akhilesh and Krishna (2021), the incidences of violence against women have remained a long-term and historical phenomenon that has indeed attracted the policy and intervention attention of government and non-governmental organisations globally. Studies have shown that the violation of the rights of women has great implications for their physical, emotional, and

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reproductive health and wellbeing. There has been a growing awareness of the need to protect the rights of women especially the vulnerable ones in society. This paper also established that African women have been subjected to different forms of economic, social and cultural impasses, particularly when it comes to gaining access to essential services such as healthcare, quality food and basic nutrition, electricity supply, and basic/affordable education. As revealed in this current study, the influence of violence on women’s mental, physical, reproductive and sexual health is detailed and highlighted in this paper. Such was the case of Mrs. White whose rights were violated by her estranged husband who later got her infected with HIV/AIDS. This is notwithstanding her protection order from the law court which the official South African Police Service failed to implement. The growing violence against women as captured in both the APRM report on South Africa in 2011 and 2021 about the Promotion and protection of the rights of women is a major challenge not only to South Africa but also to the African region at large. Thus, to enhance speedy and inclusive growth and development in South Africa, the government, its agencies and all the relevant stakeholders in both the public and private sector will have to synergize in the area of public awareness to ensure that the rights of women are adequately promoted, respected and protected across the country. This is hoped to be achieved if the above recommendations are considered and effectively implemented across South Africa.

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Deepening Leadership Accountability in South Africa Omololu Fagbadebo

and Isioma Ile

1 Introduction The South African Constitution exhibits the importance of public accountability in the promotion of good governance. In its preamble, the Constitution of the Republic of South Africa, 1996, as amended, states one of its purposes as the need of the government to “Improve the quality of life of all citizens and free the potential of each person” (Constitution of the Republic of South Africa, 1996). One of the values of the Constitution, as shown in Section 1(d), is “to ensure accountability, responsiveness and openness.” Accountability and responsive values are tangential to the promotion of effective public service delivery through ethical leadership (Fagbadebo, 2019a, 2019b). To further strengthen the accountability value, Chapter “An Assessment of Government Commitment to the Promotion and Protection of Women’s Rights in South Africa” of the Constitution lists the principles associated with the administration of the South African State. The height of these principles is the adherence to “democratic values and principles” in public administration (Section 195(1), Constitution of the Republic of South Africa, 1996). The central theme of these values is the promotion of accountability (Section 195(1a–i). In other words, leaders, in whatever capacity at all levels of the government, should discharge their duties as stipulated by the requisite statutes prescribed by the Constitution (Fagbadebo,

O. Fagbadebo (*) Department of Public Management, Law and Economics, Durban University of Technology, Riverside Campus, Pietermaritzburg, South Africa e-mail: [email protected] I. Ile School of Government, University of the Western Cape, Cape Town, South Africa e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_11

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2019b). To accomplish this, the Constitution provides a series of mechanisms to enforce, structural and institutional leadership accountability (Fagbadebo, 2019b). Structurally, there are levels of accountability in the hierarchy of the government at the national, provincial and municipal levels. Similarly, there are institutions, such as the parliaments, the judiciary and the State Institutions Supporting Constitutional Democracy (SISCD), otherwise known as the Chapter “The Voice of the Voiceless: The State of Civil and Political Rights in South Afric” institutions, which are responsible for enforcing leadership accountability (Constitution of the Republic of South Africa, 1996). Despite the constitutional recognition of the importance of leadership accountability and the provisions for the various accountability mechanisms, South Africa still reels in the throes of the crisis of governance. Poverty, unemployment, corruption and insecurity, among others, are the major characteristic features of the South African State. The recent report on the state capture phenomenon, as well as the series of allegations of mismanagement of the public sector, is a manifestation of the paucity of ethical leadership imbued with a sense of accountability. This chapter examines these challenges and presents an analysis of the need to deepen leadership accountability as an antidote to the bourgeoning crisis of governance in the country. Aside from this introduction, the chapter has five sections. The next section presents a theoretical understanding of leadership accountability. This is followed by the discussion of the accountability mechanisms in the South African Constitution. Section 4 analyses the impact of the cadre deployment policy on governance in South Africa. Section 5 discusses measures to deepen leadership accountability in South Africa while Section 6 concludes.

2 Leadership Accountability The governing of the state is the responsibility of individuals constitutionally assigned with state power. The role of these stakeholders, within and outside the structures and institutions of the government, is pivotal to the nature of development and growth of the state experiences (Gandolfi & Stone, 2018; Fagbadebo, 2020). In other words, leadership behaviours, or what Gandolfi and Stone (2018, p. 262) describe as how “a leader accesses a repertoire of styles” in the art of governing, have profound impacts on the activities of other stakeholders in government. A leader, especially in the public sector, is therefore, instrumental to the outcomes of governing and the health of the state. The behavioural disposition of leaders influences the actions of their followers (Ghanem & Castelli, 2019). Thus, the moral competence of a leader is crucial for the moderation of the “relationships among ethical leadership behaviour, self-accountability, and other-accountability” (Ghanem & Castelli, 2019, pp. 2–3). The concept of leadership has to do with “influencing and facilitating individual and collective efforts to accomplish shared objectives” (Yukl, 2012, p. 66). It is “a formal or informal contextually rooted and goal influencing process that occurs

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between a leader and a follower, groups of followers, or institutions” (Antonakis & Day, 2017, p. 5). This process requires the exercise of power, a “definitional element of leadership and one of its underlying causal mechanisms” (Williams, 2014, p. 1367). This presupposes those leaders have the knowledge of the objectives of the entity, group or society they lead. It also means that leadership goes with defined responsibilities to be accomplished within the context of the requisite regulations (Yukl, 2012; Bogenschneider, 2016; Vogel et al., 2020; Sturma et al., 2021). This depends on the attitudinal and behavioural disposition of the leaders to the power associated with their responsibilities (Yukl, 2012; Fagbadebo, 2020). As Sturma et al. (2021) have noted, for leaders to function effectively, especially in the governing of the state, they need power in defining their position as well as expressing their disposition towards influencing the environment to achieve their goals. Even though there are varieties of the definition of leadership (University of Warwick, 2012), the central understanding of the concept agrees on its nature and purpose. The University of Warwick (2012) identified eight common elements inherent in the various definitions of leadership. These are influence, goals/objectives, leaders–followers nexus, expectations, commitment and compliance, communication, purpose and direction, and situations. The realisation of expectations of followers and the objective of the entity depends on the level of commitment and compliance of leaders to the various statutory regulations (Bogenschneider, 2016; Vogel et al., 2020). Because of its centrality to the administration of a state, power is susceptible to abuse and misuse by the leaders. Given this vulnerability and the importance of power in effective public service delivery, the critical requirement of leadership in the exercise of state power is ethical behaviour. Leadership in the public sector requires the alignment of the exercise of state power to the realisation of public values and the collective good of citizens (Vogel et al., 2020; Fagbadebo, 2020). Thus, “leadership is reflected in the extent to which leaders support their followers in handling issues specific to the public sector” (Vogel et al., 2020, p. 959). This necessitates a need for “accountability, rule-following, political loyalty and network governance” (Vogel et al., 2020, p. 959). Accountability connotes holding leaders responsible for their actions and to ensure the effective performance of their responsibility (Ghanem & Castelli, 2019). It portends the compliance of leaders to the requisite roadmaps for the performance of their responsibilities in a manner that would ensure the achievement of set objectives. People with entrusted power of the state should be accountable to the public for their actions and decision (Rose-Ackerman & Palifke, 2016; Olsen, 2015). Thus, public leaders are required to render their accounts on the exercise of power in decision making and implementation. Thus, the primary responsibility of the leaders in the public is to exercise the entrusted power to attain the objectives of the state: service delivery to the public. In other words, the core of accountability is compliance with authoritative mandates with the existence of measures and mechanisms to enforce compliance and punish non-compliance. This is lacking in the African states.

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Accountable leadership, according to Mulgan (2000) and Tummers and Knies (2016), depicts the extent of the responsiveness of leaders to the needs of society and the justifiability of their actions and decisions. In other words, citizens as the stakeholders and direct beneficiaries of the purpose of the state should enjoy a measure of government responsiveness to their demands and reasonable justification for whatever actions and decisions relating to the delivery of public services. Thus, leadership accountability in the public sector connotes the exercise of state power to facilitate and promote good governance. Scholars have attributed the bourgeoning crisis of governance in Africa to a leadership deficit (Mills, 2010, 2011; Fagbadebo & Dorasamy, 2021). The cycle of vicious leadership that has characterised post-independent African states, rather than external forces such as colonialism and dependency, as often promoted by the African leaders, is responsible for the poverty, underdevelopment, conflicts and hunger, that have facilitated Africa’s dependence on the West. Even though neo-colonialism is a reality, the attitudinal disposition of the African leaders to the exercise of state power facilitates the direct and indirect control of the economy of the continent by the West. A lack of ethical leadership, and accountability to citizens in the management of public resources, is the bedrock of this deficiency. Accountability is a sine qua non for ethical leadership because it is a crucial element in the promotion of transparency and inculcation of ethical behaviour (Ghanem & Castelli, 2019). In the context of the South African political system, a report commissioned by the parliament, Report on Parliamentary Oversight and Accountability, otherwise called the Corder Report, defined accountability as given “an account of actions or policies or to account for spending. . .” (Corder et al., 1999, p. 2). Accountability can be said to require a person to explain and justify—against criteria of some kind—their decisions or actions. It also requires that the person goes on to make amends for any fault or error and takes steps to prevent its recurrence in the future. A condition of the exercise of power in a constitutional democracy is that the administration or executive is checked by being held accountable to an organ of government distinct from it (Corder et al., 1999, p. 2). This implies that accountability is a design “to encourage open government” and “serves the function of enhancing public confidence in government and ensures that the government is close and responsive to the people it governs” (Corder et al., 1999, p. 5). This is the core of the South African constitutional democracy and exhibits the emergence of accountable leadership in the administration of the government of the state.

3 Accountability Mechanisms in South Africa Given the commitment of the drafters of the South African Constitution to the promotion of accountability and transparency in the administration of the state, there are statutory mechanisms to guide the conduct of the leadership of the state.

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The Constitution makes a series of provisions to ensure that leaders are made to account for their actions. This is central to the realisation of the democratic vision of South Africa, as espoused in the Constitution. The Constitutional Court reiterated this as a commitment to the promotion of accountable and good governance. “Central to this vision is the improvement of the quality of life of all citizens and the optimisation of the potential of each through good governance” (United Democratic Movement v Speaker of the National Assembly and Others, 2017 ZACC 21). The South African parliament, in one of its annual reports, prides itself as “an activist and responsive people’s Parliament that improves the quality of life of South Africans and ensures enduring equality in our society” (Annual Report (2015–2016, p. 11). As the central structure of government that is saddled with accountability responsibility, the parliament has an enormous constitutional obligation to ensure the promotion of transparency and accountability in the exercise of the state power. The legislature envisioned itself as a vibrant people’s assembly that intervenes and transforms society and addresses the development challenges of our people; effective oversight over the executive by strengthening its scrutiny of actions against the needs of South Africans; an opportunity for South Africans to participate in the decision-making processes that affect their lives; a healthy relationship between the three arms of the State, that promotes efficient co-operative governance between the spheres of government, and ensures appropriate links with our region and the world; and an innovative, transformative, effective and efficient parliamentary service and administration that enables members of Parliament to fulfil their constitutional responsibilities (Annual Report 2015–2016, p. 11).

The South African governing system recognises the separation of powers among the three major institutions of the government: the executive, the legislature and the judiciary. This presupposes the operation of a limited government, where the dispersion of power encourages checks and balances to avert the tyranny of absolute leadership. In a series of its judgments, the Constitutional Court has affirmed the entrenched practice of the system of Separation of powers for the promotion of accountability in the South African governing system (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11; Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47). Section 55(2a–b) of the Constitution mandates the National Assembly “to ensure that all executive organs of state in the national sphere of government are accountable to it; and (b) to maintain oversight of— (i) the exercise of national executive authority, including the implementation of legislation; and (ii) any organ of state”.

Because of the importance of this power, Section 57 of the Constitution permits the National Assembly to put in place the mechanisms to hold members of the executive accountable. The Constitution recognises the important role of the legislature as the symbol of the people, and as such a pivotal institutional structure for accountability. Section 42(3) of the Constitution defines the National Assembly (NA) as an elected body that is saddled with the responsibility of representing “the people and to ensure government by the people under the Constitution. It does this by choosing the

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President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action” (Constitution of the Republic of South Africa, 1996). The scrutinising and oversight responsibilities are central to the promotion of good governance through effective monitoring of the activities of the executive branch of the government. In furtherance of this, the Constitutional Court affirmed this core responsibility of the parliament as the voice of the “voiceless” South Africans, serving as the “watchdog of State resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people” (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11). It also bears the responsibility to play an oversight role over the Executive and State organs and ensure that constitutional and statutory obligations are properly executed. For this reason, it fulfils a pre-eminently unique role of holding the Executive accountable for the fulfilment of the promises made to the populace through the State of the Nation Address, budget speeches, policies, legislation and the Constitution, duly undergirded by the affirmation or oath of office constitutionally administered to the Executive before assumption of office (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11)

. In essence, “Sections 42 and 55 of the Constitution jointly provide the foundation that anchors legislative oversight responsibility for the enforcement of accountability” (Fagbadebo, 2019b, p. 26). The entire executive branch of the government, the President, Deputy President, members of the Cabinet and Deputy Ministers, are all constitutionally accountable to the parliament. Section 92(2–3) of the Constitution states that. Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. (3) Members of the Cabinet must— (a) act in accordance with the Constitution; and (b) provide Parliament with full and regular reports concerning matters under their control (Constitution of the Republic of South Africa, 1996 as amended). Similarly, Section 93(2) of the Constitution mandates the Deputy Ministers to be “accountable to Parliament for the exercise of their powers and the performance of their functions” (Constitution of the Republic of South Africa, 1996 as amended). In realisation of the importance of information in the performance of these responsibilities, Sections 56 and 69 of the Constitution empower the two Chambers of the Parliament, the NA and the National Council of Province (NCOP), to access every avenue for the necessary information required for the performance of their oversight and accountability (OVAC) functions. In other words, the parliament has the power to summon anyone to give evidence. Additionally, the parliament’s power of the purse empowers it to authorise funds and monitor the disbursement, for the implementation of the policies of the government (Sections 213 and 215 of the Constitution of the Republic of South Africa, 1996 as amended). Similarly, Section 216 mandates the parliament to establish Treasury Control to “prescribe

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measures to ensure both transparency and expenditure control in each sphere of government” (Constitution of the Republic of South Africa, 1996). Aside from the legislature, the Constitution also empowers the SISCD in Chapter “The Voice of the Voiceless: The State of Civil and Political Rights in South Afric” to exert a measure of accountability control over the executive to “strengthen constitutional democracy” (Section 181, Constitution of the Republic of South Africa). Two of these institutions, the Public Protector (PP) and the Auditor-General (AG), are pivotal to hold the executive accountable. The PP, for instance, has the power to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action (Section 182(1), Constitution of the Republic of South Africa, 1996 as amended). The remedial action prescribed by the PP is an effective and enforceable accountability mechanism. Even though the PP has to submit its reports to the parliament (Section 8(2), Public Protector Act 1994), the purpose, according to the Constitutional Court, is to enable the President held accountable and comply with the remedial action (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11). This implies that the report of the PP could serve as the basis for further legislative action in enforcing accountability. The Constitutional Court averred that the report of the PP should trigger “into operation the National Assembly’s obligation to scrutinise and oversee executive action and to hold the President accountable, as a member of the Executive” (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11, paragraph 95). This is an obligatory duty of the parliament as pronounced by the Constitutional Court that the NA is “duty-bound to hold the President accountable by facilitating and ensuring compliance with the decision of the Public Protector” (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11, paragraph 97). In effect, the NA has no right to obfuscate or nullify the remedial action of the PP. Thus, the failure of the president to comply with the remedial action of the PP and the attempt by the NA to nullify it would amount to an abuse of the Constitution. Likewise, the AG is another structural accountability mechanism to ensure transparency in the disbursement of funds appropriated by the parliament. Section 188 of the Constitution mandates the AG to “audit and report on the accounts, financial statements and financial management” of all institutions, structures and entities of the government at all levels (Constitution of the Republic of South Africa, 1996 as amended). Section 188(3) specifically directs the AG to submit its report to the legislature for further scrutiny and action. In other words, the AG is an “integral part of the checks and balances of a constitutional democracy and accountable government” (Nicol et al., 2020, p. 12). Like the PP, the AG plays a

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complementary role to facilitate the oversight responsibility of the parliament, serving as a watchdog and veritable source of information that is not derived from the executive but is necessary for holding the executive accountable (Corder et al., 1999). As the Corder Report noted, the AG has the time and resources for in-depth investigation, unlike the members of the parliament who might be handicapped by party discipline and their lack of “political independence that is required to arrive at an impartial decision” (Corder et al., 1999, p. 30). The height of the accountability mechanisms is the constitutional provisions that empower the legislature to discipline the executive leadership found to have violated requisite constitutional prescriptions. Section 102 of the Constitution empowers the NA to remove the president and the entire members of the executive through a vote of no confidence. (1) If the NA, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, then the President must reconstitute the Cabinet. (2) If the NA, by a vote supported by a majority of its members, passes a motion of no confidence in the President, then the President and the other members of the Cabinet and any Deputy Ministers must resign (The Constitution of the Republic of South Africa, 1996, as amended).

The Constitutional Court described this provision as a potent accountability tool. In that context, it is inextricably connected to the foundational values of accountability and responsiveness to the needs of the people. It is a mechanism at the disposal of the National Assembly to resort to, whenever necessary, for the enhancement of the effectiveness and efficiency of its constitutional obligation to hold the Executive accountable and oversee the performance of its constitutional duties (United Democratic Movement v Speaker of the National Assembly and Others, 2017 ZACC 21, paragraph 32).

This is necessary because the failure of the leadership of the executive branch to account for their responsibility constitutes an affront to the people who voted them to power. As the Constitutional Court puts it, the accountability component of the vote of no confidence “is necessitated by the reality that constitutional office-bearers occupy their positions of authority on behalf of and for the common good of all the people. It is the people who put them there, directly or indirectly, and they, therefore, have to account for the way they serve them” (United Democratic Movement v Speaker of the National Assembly and Others [2017] ZACC 21, paragraph 32). Aside from a vote of no confidence, the NA can also remove the president from office through an impeachment process. Section 89 of the Constitution states The National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the President from office only on the grounds of—(a) a serious violation of the Constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office. (2) Anyone who has been removed from the office of President in terms of subsection (1)(a) or (b) may not receive any benefits of that office, and may not serve in any public office (Constitution of the Republic of South Africa, 1996, as amended).

The vote of no confidence and impeachment provisions, according to the Constitutional Court, are “crucial accountability-enhancing instruments that forever remind the President and Cabinet of the worst repercussions that could be visited upon them, for a perceived or actual mismanagement of the people’s best interests” (United

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Democratic Movement v Speaker of the National Assembly and Others, 2017 ZACC 21, paragraph 10). In the contemplation of the drafters of the Constitution, the NA was duty-bound to invoke these provisions, as accountability mechanisms, to whip into line, erring members of the executive that are involved in the violation of the constitution. In practice, however, this was the contrary, even though there were valid grounds for the NA to discipline the executive. The overwhelming majority of the members of the governing party, the African National Congress (ANC), prevented the success of all the nine attempts to remove President Jacob Zuma through the vote of no confidence (Nkosi, 2017; BBC News, 2017). The defeat of these attempts was not because the president had a clean integrity record of leadership service. He enjoyed the loyalty and support of his comrades in the parliament who shielded him even though they were privy to the various infractions he committed while in office. While the Constitution expects the loyalty of the leaders of the government to the state, they have shifted loyalty to their respective political organisations, thereby circumventing the principle of accountability which is the core of the country’s constitutional democracy in the name of cadre deployment policy of the governing party.

4 Cadre Deployment as Anathema to Leadership Accountability in South Africa Cadre deployment policy is a political patronage mechanism to reward loyal party members. According to Ndedi and Kok (2017, p. 1), it is a “patronage dispensed to individuals, companies and agencies, by the government’s governing policy, not on merit but on the basis that they enjoy some political connection to the governing party”. In the governing African National Congress (ANC), cadre deployment is part of the revolutionary instruments to strengthen the governing party and centralise democratic powers, given the nature of its evolution as a vanguard of freedom from the oppressive apartheid policy of exclusion. Twala (2014, p. 159) contends that the policy “undermines the accountability structures in the public service.” By placing loyal members of the party in strategic positions in the public service, service delivery would be compromised while the power and influential control of the organisation would be strengthened to serve the interests of its leadership. In effect, cadre deployment erodes the apolitical feature of the public service and jeopardises its effective performance (Batley & Mcloughlin, 2015). In simple terms, cadre deployment is the politicisation of the public service. The political dynamics of the state, defined by its governing system, shape the performance of the bureaucracy. Cadre deployment policy in South Africa “calls on the president, deputy president, ministers and deputy ministers, director-general and other government and parastatal officials to consult with the party’s deployment committee before making key appointments” (Madisa, 2022). It has become a defining nature of the country’s

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political culture because it “prioritizes allegiance above merit and even competence and is thus a significant impediment to the delivery of effective services” (Mlambo et al., 2022, p. 13). Party loyalists “who are politically linked and, in many circumstances, inept are placed in top positions. Consequently, unqualified and incompetent individuals are unable to provide services in a timely and effective manner” (Mlambo et al., 2022, p. 13). In the theory of administration, cadre deployment is an anathema. The apolitical feature of the bureaucracy presupposes a politically neutral service organ of the executive branch of the government committed to the promotion of the interest of the state rather than a political organisation (Nyadera & Islam, 2020). Thus, A professionalised public service consists of a “hierarchical bureaucracy consisting of professionals to collaborate with political leadership in delivering quality public goods” (Nyadera & Islam, 2020, p. 1). In this sense, given the service characteristic of bureaucracy, public servants provide bureaucratic leadership offering their technical expertise in administration, devoid of political affiliation and sentiments. The cadre deployment policy of the governing party in South Africa has been noted as a major obstacle to accountability. The chairperson of the State Capture Inquiry, known as the Zondo Commission, Chief Justice Raymond Zondo, noted that the policy facilitated the monumental graft and mismanagement of public resources (Madisa, 2022). According to him, evidence abounds that links state capture to “the appointment of pliant individuals to powerful positions, in stateowned entities, (cf. Madisa, 2022). Such individuals whose appointment process was “conducted behind closed doors and outside the constitutionally and legally stipulated processes are open for abuse.” Consequently, Justice Zondo declared the policy unconstitutional. It is clear that within the current constitutional and statutory framework it is unlawful and unconstitutional for a president of this country and any minister, deputy minister, directorgeneral or other government official, including those in parastatals, to take into account recommendations of the ANC deployment committee or any deployment committee or any similar committee of any other political party in deciding who should be appointed to a position in the public service or in organs of state or parastatals (cf. Madisa, 2022).

As Willis (2022) has argued, State Capture “would not have been possible without willing compliance of members in the public service and other operational bureaus to bow to their string-holders in governance.” As public servants, deployed by the ruling party, these public service leaders have to do the bidding of those who deployed them. The policy makes the members of the party deployed to serve in government to be loyal to the party. It is the “ANC’s systematic placement of party loyalists in the public service and state-owned enterprises” (Willis, 2022). According to him, “in the public’s interest that they should know how the ANC’s cadre deployment committee influences decisions and appointments by state entities or government functionaries” (cf. Boonzaaier, 2022). As Willis (2022) has noted, “loyalty to the ANC guarantees positions, tenders, and has led to widespread corruption. . . .” Thus, the essence of deployment was not to promote governance in the interest of the public but of individuals in the governing party. Deployed “comrades” are accountable to the party, even if their

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conduct was antithetical to the development of the state. This blind loyalty to the party rather than the state was the bedrock of the corruption and mismanagement of resources that characterise the operations of the government as well as the disposition of members of the parliament to their oversight responsibilities (Fagbadebo, 2020). In one of its scratching judgments against the government, the Constitutional Court had to reprimand the NA for its failure to hold the president accountable (Economic Freedom Fighters and Others v Speaker of the National Assembly and Another [2017] ZACC 47). Even though the NA acceded to the vote of no confidence in the president, the overwhelming majority of the members of the ANC in the NA were deployed by the party to the parliament. As such, the vote of no confidence failed because they could not vote against their comrade, deployed by the party to be removed from office. Former president, Jacob Zuma, “survived nine no-confidence votes despite a record in office marred by allegations of sleaze and influencepeddling” (Roelf & Strydom, 2017). Even though some members of the ANC voted for the removal of the president, the party considered their action as an attack on the party. The party’s Chief Whip in the parliament at the time, Jackson Mthembu, said, “We will look at what is this thing that has made certain members of the ANC a little bit hesitant to defend their party when it is under attack” (cf. Roelf & Strydom, 2017). Consequently, members of the ANC in the parliament who voted along with the opposition were slated for discipline. According to Fikile Mbalula, the then Minister of Police Affairs, members of the parliament were “accountable to the party and they take their mandate from the National Executive Committee” (cf. ENCA 2/7/, 2017). He added that members of the parliament who decided to vote along with their conscience against the decision of the leadership of the party would face disciplinary measures. The implication of this was that the party supported the corruption and abuse of power that characterised the government. In other words, the party was not interested in leadership accountability but loyalty to the interest of the governing party. The system that enabled State Capture rewards those who toe the party line and punishes those who do not. The latter, who recognise that their duty to the Constitution is a moral obligation that comes before loyalty to the ANC, have suffered (Willis, 2022).

This manifested in the inability of the parliament to hold former president, Jacob Zuma to account for all the infractions that characterised his administration. In 2014, the PP found him culpable of breach of his oath of office and the provisions of the Executive Members’ Ethics Act and Executive Ethics Code, when he used public money to upgrade his private residence in Nkandla (Public Protector, 2014). Even though the parliament absolved him of any malfeasances, the Constitutional Court, however, reprimanded the NA for its failure to hold the president to account and ordered the president to comply with the remedial action imposed by the PP (Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11).

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Similarly, in 2016, the PP indicted the president for his culpability in the allegations of state capture and that he profiteered from his relationships with private individuals who had access to unethical influence on the operations of government entities (Public protector, 2016). The president denied the allegations but the evidence before the Commission that investigated the allegations affirmed the indictment. President Zuma did not appear before the Commission. President Ramaphosa was aware of the impact of the policy on governance, in the public administration. In his 2022 State of the Nation Address (SONA), he said The fight against corruption will take on a new intensity thanks to the outcomes of the State Capture Commission, the strengthening of law enforcement agencies and the implementation of new anti-corruption practices in the public service (cf. Willis, 2022).

The president hinted that his administration would commence the professionalisation of the country’s public service, a statement interpreted to mean the death of the cadre deployment policy (Willis, 2022).

5 Deepening Leadership Accountability in South Africa Given the depth of the various mechanisms to ensure and enforce accountability in the administration of the state, it is ironic, however, that impunity is a common feature in the administration of the state. The challenge of accountability in South Africa is not in the dearth of requisite legislative frameworks in the institutionalised structures of the government. Implementation of government policy is susceptible to manipulation and stakeholders consider power as an instrument of personal accumulation of wealth at the expense of the collective interest of the public. Even though there is strong institutional support for accountable leadership, docility and complicity tainted their activities. “South Africa’s democracy has had strong and credible institutions for a significant period. However, much of their capacity and credibility had been eroded in the course of the rule of the Zuma administration” (Stiftung, 2022). Despite these structural, institutional and legislative frameworks to promote accountable leadership, South Africa suffers from leadership deficiency that has culminated in the capture of the machinery of the state by influential individuals outside the government, facilitated by political and bureaucratic leaders to advance their pecuniary interests at the expense of the public. One of the challenges of public service delivery in South Africa is the paucity of ethical leadership, especially in the legislative and executive branches of the government (Mbandlwa et al., 2020). Recent reports of the State Capture phenomenon, as well as other malfeasances committed by top government officials in the country, attest to the depth of abuse that characterise the administration of the South African public sector. The Constitutional Court recognised this rot in the country’s political landscape in its judgment on the abuse of executive power.

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In circumstances where ethical leadership, transparency and accountability are key to the survival and well-being of our democratic order, a State functionary may not permissibly choose a way to obscure an otherwise disclosable benefit by creating or allowing a structure to be created, as a repository of a known benefit under the garb of a distinct juristic personality, so as to escape or immunise himself or herself from a constitutionally-prescribed obligation to be open, accountable and to disclose (Public Protector and Others v President of the Republic of South Africa and Others [2021] ZACC [19, p. 64).

The parliament is a major institutional structure that is constitutionally empowered to ensure and enforce accountability in the exercise of the power of the state. With its enormous constitutional power, because of the peculiarity of the county’s governing system, the legislative institution is at the centre of the policy process that requires effective oversight of executive actions. Nevertheless, the South African parliament has failed in providing the requisite legislative leadership because of the allegiance of the majority of the members to the leadership of the governing party. Thus, it is appropriate to describe the South African legislature as a docile oversight institution. As Nicol et al. (2020) noted, various reports and proposals have indicated the weakness of the oversight responsibility of the legislature. Indeed, most of them have been documented as the OVAC model of the parliament. Nevertheless, there is no evidence of any commitment to their implementation. The parliament recognises its pivotal institutional role as the builder of “an effective people’s Parliament that is responsive to the needs of the people, and that is driven by the ideal of realising a better quality of life for all the people of South Africa and its mission is to represent and act as a voice of the people in fulfilling Parliament’s constitutional functions of passing laws and overseeing executive action” (OVAC, No date, p. 1). In addition, the OVAC model expressed the understanding of the necessity of the accountability role of the parliament as sine qua non to good governance. The true test of democracy is considered the extent to which Parliament can ensure that government remains accountable to the people by maintaining oversight of [the] government’s actions. Whether Parliament is indeed successful in effectively holding the Executive accountable will ultimately depend on the extent to which committees and individual members of Parliament actively exercise their oversight role (OVAC No Date, pp. 44-45).

Despite all these, there is no evidence of any commitment to the implementation of these positions other than mere rhetoric. There is indeed a lot on paper. Parliamentary rules have been revised over years of detailed deliberation. But the test is the effectiveness of Parliament’s scrutiny of executive action, and the extent of Parliament’s success in holding the executive to account. Here Parliament has failed (Nicol et al., 2020, p. 7).

A former AG, Kimi Makwetu, once wondered how the legislative voices in OVAC would “be louder” in the promotion of prudent public expenditure of resources (Makwetu, 2020). The persistent negative audit reports of the AG, that revealed “sheer staggering numbers of wasteful, fruitless, unauthorised and irregular expenditure” (Makwetu, 2020) in government administration should have served as an impetus for effective legislative actions to arrest the situation and ensure accountability. Nevertheless, the legislature failed. In his indictment, the legislature, the AG, said

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The very existence of such expenditure suggests that those who persistently incur it are not bothered as long as there is no accountability or consequences. . .This indicates that people entrusted with public money do not always carry this task with the level of care required by the country’s Constitution (Makwetu, 2020).

This parliamentary oversight failure and docility are responsible for the continuous denigration of state institutions and entities and the pervasive impunity which culminated in the state capture spree. For instance, when the PP indicted former president Zuma in its Nkandla report, the parliament absolved the president and set aside the report and the PP’s remedial actions. When the legislature is committed to protecting the interests of the leadership of the governing party, accountability will be endangered while public service delivery will be characterised by failure. The various institutionalised structures and entities that are saddled with the provision of services would be captured and become agencies to promote the pecuniary interest of the leadership of the governing party and their cronies. Hence, the prevalence of public service delivery protests in the country. It is essential, therefore, to note that deepening leadership accountability requires effective legislative oversight of executive actions. The governing system should be overhauled to ensure that individual in a leadership position is accountable, not to the governing party, but to the people that elected them into office. The parliament, in particular, should be populated by directly elected representatives who would be held accountable by their constituents rather than the party. In other words, loyalty to the governing party should be replaced by accountability to the people. This would effectively allow the emergence of a legislative institution composed of independent-minded representatives delegated to advance the interests of their constituents.

6 Conclusion This chapter discusses the imperative of leadership accountability in the administration of the South African government. While there are institutions and structured designed to capacitate legislative OVAC, it has been shown that the attitudinal disposition of the lawmakers toward their party rather than the state, as contemplated by the Constitution, has remained a major challenge to legislative effectiveness. The cadre deployment policy of the governing party constitutes a barrier to the institutionalisation of accountability as a culture of public administration. The reality of leadership failure in the South African public administration is evident in the burgeoning crisis of governance that characterise the country. This is not within the intendments of the drafters of the Constitution who had sought a postapartheid democratic society that would relieve citizens of the relics of the past. Accountable leadership is a necessity for good governance. And the legislature, in the South African governing system, is well equipped to harness the various oversight mechanisms and assert its leadership responsibility in the policy process. Thus, effective legislative oversight through dedicated members of the parliament

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cannot be compromised for the accountability to occupy the central focus of government leadership in the country.

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Correction to: Peace and Stability in South Africa: The Struggle Continues Enos Lekala

Correction to: Chapter 5 in: I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_5 Owing to an oversight, this book was inadvertently published with the incorrect author name “Lekala and Enos”. This has now been corrected.

The updated original version for this chapter can be found at https://doi.org/10.1007/978-3-031-16313-5_5 © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 I. Ile, O. Fagbadebo (eds.), Democracy and Political Governance in South Africa, Advances in African Economic, Social and Political Development, https://doi.org/10.1007/978-3-031-16313-5_12

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