THE CONCEPT OF GOVERNANCE
2.9 TRANSPARENCY IN GOVERNANCE
2.9.3 Institutions and mechanisms ensuring transparency in governance
2.9.3 Institutions and mechanisms ensuring transparency in
• Abuse of power or unfair, discourteous or improper conduct by a person performing a public function;
• Improper or dishonest act, or corruption with respect to public money;
• Improper or unlawful enrichment by a person employed by the government at any level;
• Act or omission by an employee of the government at any level which results in unlawful or improper prejudice to any other person (Cameron & Stone, 1995: 14).
The Public Protector may also resolve disputes, refer matters before him/her to the appropriate body, make recommendations regarding actions to be taken, and advise complainants regarding appropriate steps to be taken. The Public Protector shall be independent and impartial and shall repost annually to Parliament, and can also play an important role in preventing corruption and the abuse of pO'U.-ef.
The Public Protector investigates the behaviour of the political office- bearers and public officials from an ethical, procedural and policy point of view. According to Mafunisa (in Kuye, Thornhill & Fourie, 2002: 201) the fear of being exposed to the public is a factor which might discourage pu blic functionaries from behaving unethically, inefficiently and ineffectively.
2.9.3.2 Human Rights Commission
The Bill of Rights serves to stop the government from abusing the rights of the people. In terms of section 184 of the Constitution, the Human Rights Commission must promote transparency III governance by monitoring and assessing the observance of human rights in South Africa (Du Toit et aI, 1998: 160).
In terms of Section 184 of the Constitution the functions of the Human Rights Commission include:
• Promoting respect for human rights and a culture of human rights;
• Promoting the protection, development and attainment of human rights;
• Monitoring and assessing the observance of human rights in the republic.
The Human Rights Commission also has the powers, as regulated by national legislation, necessary to perform its functions, including the power to:
• Investigate and report on the observance of human rights;
• Take steps to secure appropriate redress where human rights have been violated;
• Carry out research;
• Educate.
Each year the Human Rights Commission must requIre relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment (Jonker in Van Niekerk et aI, 2002: 81). The fundamental task of the South African Human Rights Commission is to promote the observance of human rights as enshrined the Bill of Rights. All South Africans need to be informed of their human rights and those rights must be protected.
The Commission seeks to build a culture of human rights through public awareness and training programmes, special projects, inquiries, hearings and legal interventions.
2.9.3.3 Commission for Gender Equality
The Commission for Gender Equality has the power, in terms of section 187 of the Constitution, to enforce transparency in governance in the sense that it can monitor, investigate, advise and report on issues concerning gender equality. National legislation provides additional powers and functions to this Commission.
The Commission for Gender Equality must promote respect for gender equality and the protection, development and attainment of gender equality. This Commission has the power, as regul8..i:e(~ by national legislation, necessary to perform its functions, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality (Jonker in Van Niekerk
et af, 2002: 82).
2.9.3.4 Auditor-General
The President appoints the Auditor-General. In terms of section 3 (5)(b)(iii) of the Auditor-General Act, No 12 of 1995, the Auditor- General has the right to investigate and inquire into any !Tlaner.
According to Van der Waldt et af (2002: 273) this includes the efficiency and effectiveness of internal control and management measures relating to expenditure and revenue.
The Auditor-General's primary objective is to provide independent information, assurance and advice to legislatures on how government departments and other public bodies account for and use taxpayers' money. The Office of the Auditor-General audits the books of government and any institution authorised by law to receive money for a public purpose (Taylor in James & Levy, 1998: 35).
The Auditor-General's principal functions and responsibilities are set out in section 188 of the Constitution as well as in the Auditor- General Act. To ensure his or her independence, he or she is appointed for a fixed term, which is not renewable. The Auditor- General must audit and report on the accounts, financial statements and financial management of:
• All national and provincial state departments and administrations
• All municipalities
• Any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General (Section 188).
According to Du Toit et al (1998: 160), to ensure transparency and governance with regard to public finance expenditure, it is his or her duty to audit and report on the accounts of government at all levels, providing that essential, independent link in the whole process of legislative control over the financial activities of the executive arm of government.
The Office of the Auditor-General promotes accountability and good governance. Public officials will try to perform their duties effectiF?ly, efficiently and ethically, if they know that their actions might be investigated. They will do so to ensure that effective management principles have been taken into account so that resources are procured economically and used efficiently (Mafunisa in Kuye, Thornhill & Fourie, 2002: 202).
2.9.3.5 Independent Communications Authority of South Africa
In terms of section 192 of the Constitution, an independent authority must be established to regulate broadcasting in the public interest.
This independent authority must promote transparency by ensuring that there is fairness and a diversity of views broadcast on national broadcasting senders such as radio and television. These views must be broadly representative of South African society.
The Independent Communications Authority, unlike the other institutions, is more a regulator than a watchdog body (Taylor in James & Levy, 1998: 38).
2.9.3.6 Courts of law
Public institutions can exist and function properly only when law and order can be maintained. In this regard, the courts of law and supportive institutions are essential. The essential requirement IS that the judiciary should be independent in its functional field.
Section 165(2) of the Constitution states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
The courts of law will always be open to citizens who feel that public institutions and functionaries have treated them unfairly.
The courts are:
• The Constitutional Court (the highest court in all constitutional matters);
• The Supreme Court of Appeal (the highest court of appeal, except in constitutional matters);
• The High courts (decide any constitutional matter);
• The Magistrates' courts (decide any matter determined by an Act of Parliament); and
• Any other court established or recognised in terms of an Act of Parliament (Du Toit et ai, 1998:161).
2.9.3.7 Independent Electoral Commission
According to Taylor (in James & Levy, 1998: 35) the Independent Electoral Commission's role is technical and administrative as well as educative and interpretive. On the one hand, it must compile voters' rolls, demarcate electoral wards and conduct voter education. On the other, its role is to "strengthen constitutional democracy and promote democratic electoral processes" in terms of Section 4 of the Electoral Commission Act of 1996.
Through elections the public opinion of voters is tested (Du Toit et ai, 1998: 162). If the political party that constitutes the government of the day has acted in an untransparent way, it may be expectcu that it will be defeated in a general election. Regular elections are therefore in the interest of democracy.
The Independent Electoral Commission must:
• Manage elections of national, provincial and municipal legislative bodies in accordance with national legislation;
• Ensure that those elections being held are free and fair;
• Declare the results of those elections within a period that must be prescribed by national legislation and that is as short as reasonably possible (Jonker inVan Niekerk et ai, 2002: 83).
2.9.3.8 Commission for the Promotion and Protection of the Rights of Cultural, religious and Linguistic Communities
This Commission has, in terms of section 185 of the Constitution, the power to monitor, investigate, research, advise and report on issues concerning the rights of cultural, religious and linguistic communities. If the members of the Commission find any transgression, they may report it to the Human Rights Commission.
In terms of Section 185 of the Constitution the primary object~ and functions of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are to:
• Promote respect for the rights of cultural. Religious and linguistic communities;
• Promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association;
• Recommend the establishment or recognition, in accordance with national legislation, of a cultural or other counr:il or councils for a community or communities in South Africa (Jonker inVan Niekerk et aI, 2002: 82).
The Commission has the power, as regulated by national legislation, necessary to achieve its primary objectives, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities. The Commission may report any matter that falls within its powers and functions to the Human Rights Commission for investigation.
2.9.3.9 Media and pressure groups
The media are institutions of society and play an important role as watchdogs over the actions of politicians and public officials. The media pave the way for the public to debate, to reflect and to make a choice.
Because government is seen as the public's business, individual citizens or groups deemed it their right to know what government does. The media correspondingly consider it their duty to report on virtually every facet of government judged to be news worthy or in the public interest. The decisions of public officials are more likely to receive public scrutiny than is the case for their private sector counterparts (Van der Waldt in Van Niekerk et ai, 2002: 168).
The communication media include television, radio and newspapers.
Reports In communication media are used to safeguard accountability and to report on governance by political office-bearers and public officials. They do this by exposing scandals, mismanagement and corruption in the public sector (Mafunisa in Kuye, Thornhill & Fourie, 2002: 200).
In South Africa members of the community have created a numb~r of institutions with identical interests. These groups are continually engaged in making representations to various authorities about changes to policy (Du Toit et ai, 1998: 163).