BUSANI NGCAWENI: Masuku's High Court matter will illuminate some blurred lines

OPINION

Last Thursday (21 January), the North Gauteng High Court attended to a review case involving the erstwhile MEC for Health in Gauteng, Dr Bandile Masuku, who has applied to the said court to set aside the adverse findings of the Special Investigative Unit (SIU). "

This is because in late 2020, the SIU found that Masuku did not exercise the necessary executive oversight on alleged acts of corruption in the procurement of personal protective equipment (PPE) to protect health workers from the coronavirus pandemic. Masuku contended that he did exercise executive oversight. Judgment was reserved.

This is potentially a ground-breaking case given what is at stake in terms of politics, public governance and the law. Of interest to political and governance observers are not the legal arguments per se – important and embedded as they are – but the political implications that could have far-reaching implications for our youthful democracy.

At issue in this case is how we understand and apply the principle of segregation of responsibilities as we exercise authority and practice governance over issues and public institutions. What is the definition of executive oversight, and what are its limits and responsibilities?

In order to answer this question, one assumes that the court will have to determine whether what transpired, in terms of the executive authority's actions or inaction, amounted to oversight or lack of thereof. In other words, the court will have to take the prescripts of the law and assess whether the various responsible actors and regimes have in practice complied with the spirit and letter of the law in the governance of the Gauteng Department of Health.

The debate on the relationship between executive authorities (EAs) and accounting officers (AOs) in South Africa is not new. In the past, when politicians clashed with their accounting officers, it was often characterised as personality clashes. Whereas, as we have seen in many cases that have been settled by the courts or Chapter 9 institutions, there are usually weighty matters of governance, service delivery or policy issues at play. In public policy parlance, it is called political-administrative interface which, admittedly, has been fraught in our polity (Disclaimer: yes, there are indeed petty personality clashes and we have seen many heads of departments and city managers lose their jobs as a consequence - some EAs say they do not want to hunt with another person’s dogs – meaning each time there is a change of political leadership, the AO has to go).

I contend that the drafters of the Constitution and the Public Finance Management Act were deliberate in their intention to separate the roles of executive authorities and accounting officers. Like the separation of powers doctrine, the drafters intended to keep a system of checks and balances between political leadership and the state’s mandarins. The exercise of power and accountability ought to happen with the full knowledge that one’s power is limited and checked against the other (with the safeguard of judicial review in the case of a dispute).

Admittedly, the wider climate within which this case takes place may not be conducive for a rational and well considered debate. Corruption – both real and perceived – has deepened and the public rightly pours scorn on it. And so, others may consider this case an academic exercise and an attempt by a politician to save his otherwise blossoming career. Such a climate may make us miss a grand opportunity to reflect critically on a very important matter of governance: the powers, limits and responsibilities of executive oversight in public governance.

As some of the governance principles and practices deepen - the further we go in our democratic journey - more of the substantive questions underlying administrative-political interface are beginning to crystalise.

In the real world, policies and laws are regularly tested in the thrift and thrust of actual practice. Timing is another key aspect. The expectation is for executive authorities not to get involved in operational aspects of their portfolios, while retaining deep interest, offering political guidance and overseeing or ensuring effective administration. This makes executive authorities fairly distant while remaining present without dipping their hands in day-to-day operations of the department – like directing who must be employed as a receptionist and which service provider must install shelter and waiting benches at frontline offices. This is to insulate and protect the autonomy of the administration while also protecting the political principals from both the temptations and potential crossing of the line into territories legally demarcated for heads of departments, chief executive officers and municipal managers.

This case before the High Court is also important in the context of what we read in court documents and in the media. Masuku argues that as soon as he became aware of possible maladministration, he immediately took steps to get matters investigated through relevant authorities. The High Court determines whether such steps were sufficient or deficient within the confines of legally prescribed notions of executive oversight consistent with its judicial review mandate.

Again, for those of us who labour in the management of public affairs, the outcome will be vital as it will illuminate some blurred lines. At another level, if Masuku loses, and depending on the interpretation of the judgment, some might argue that the new normal is upon us in a sense that executive authorities across the spheres whose departments get negative audit reports or experience maladministration will have to be demoted just like Masuku.

Of course, one might be stretching the imagination here, but it is not a farfetched thought judging by the weight and influence of public opinion in the management of public affairs in our polity. We might even see temptations to get more involved in administration in order to manage the risks of a demotion if corruption is reported.

Both as readers and practitioners in public governance, we must be circumspect in our prospecting of these issues. We should strike the balance and avoid the two extremes where we fall into the danger of either scapegoating or, even worse, run away from accountability. This matters as much for accounting officers (note both the legal and literal meaning of the word: accountable, answerable, liable, responsible!).

We should not pit the expectations of accountability against effective oversight and governance.

Instead, the debate we should be having must be about the clarification (legally) of the scope and limits of executive oversight. Is it a binary choice between legal or moral standards? We think not. Because politicians have extraordinary privileges and powers, we should consider a higher standard that will incentivise them to take accountability more seriously in a manner that encourages them to aspire for cleaner governance while ensuring accountability and effective administration.

The principle of separation of roles must not be used by politicians to escape accountability, neither must it be used to punish them unfairly nor make it easy for negative intra-party politics to thrive. What is needed is to define and understand where failures of executive oversight can lead to serious failures in the quest to improve the quality of life of our people.

We trust the legal institutions of our land. They will help us clarify grey areas and perhaps silence those who critiqued a very important September 2020 circular of the Public Service Commission, which set the record straight of what is termed unlawful instructions by executive authorities to accounting officers. Already, there is legal precedence set by the High Court in Cape Town, which found an accounting officer criminally liable for maladministration in a municipality.

Busani Ngcaweni is co-editor of 'We are No Longer at Ease: The Struggle for #FeesMustFall'. Follow him on Twitter: @busani_ngcaweni

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