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Taming Executive Authoritarianism in Africa: Some Reflections on Current Trends in Horizontal and Vertical Accountability

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Abstract

Executive lawlessness has been one of the major sources of the crisis of constitutionalism in Africa. After a 9 year tenure marked by allegations of corruption and complicity in the capture of the state by an Indian business family, the South African president, Jacob Zuma was forced to resign on 14 February 2018. This came hard on the heels of the rare and bold decision by the Kenyan Supreme Court in September 2017, to declare null and void the results of a presidential election that resulted in the incumbent’s winning a second term. Meanwhile, in the Democratic Republic of Congo, dozens of people have died in protests as Joseph Kabila refuses to step down or hold elections after the end of his second and final term, claiming that this is due to lack of funds and logistical obstacles such as an incomplete and unreliable electoral roll. These and numerous other recent events have not only called into question the prospects for sustaining the democratic transition from the corrupt, repressive and incompetent authoritarian governance of yesteryear that Africa began to witness in the 1990s. More pertinently, this has raised the question of whether the accountability mechanisms in the constitutions that African states revised or adopted in the 1990s and thereafter, are sufficiently effective for checking the continent’s unruly executives? Africa’s ‘big men’ and their cronies are well known for their insatiable capacity to misuse their privileged positions to enrich themselves and their supporters almost with impunity. The Zuma case, however, underscores just how challenging it is to enforce the fundamental principle that all citizens, regardless of their status, are not only equal before, and bound to obey and act in accordance with the law, but that the law also applies to all without fear, favour or prejudice. This paper examines, from a comparative perspective, the manner in which attempts are being made to ensure that the executive branch, especially presidents, are accountable for their actions and inactions. The issue of executive accountability is situated within the broader context of the extensive powers usually conferred on the executive branch. The operation of two main accountability mechanisms and institutions to check against abuses of executive power: horizontal accountability processes and vertical ones, adopted in African jurisdictions, are critically reviewed. The paper shows that, in spite of the numerous innovative measures and institutions introduced to check abuse of powers in Africa, executive accountability is generally in decline. More needs to be done to sustain the transition to transparent and accountable systems of governance on the continent.

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Notes

  1. Zuma v Democratic Alliance and Others (2017), para 146; Acting National Director of Public Prosecutions and Another v Democratic Alliance and Another (2017) para 200.

  2. The phenomenon of ‘state capture’ has been defined in different ways in the literature. What comes through from these definitions is that this phenomenon involves a situation where an individual, group or firm, external to the state exercises decisive influence over state institutions and policies in a manner that advances their financial interests against the public good. Thus usually involves making private payments to public officials and using them to alter the underlying rules of doing business (that is, legislation and rules). The prodigious literature on state capture that became a hallmark of the Zuma presidency includes books by Basson and Pieter du Toit (2017), Chipkin et al. (2018), Myburgh (2017), and looking beyond South Africa, there is a book on state capture in Kenya by Gichuru (2018). Before his removal from office, Zuma was forced to create a commission of inquiry based on the recommendations made by the Public Protector, discussed below. Evidence of the extent of the complicity of Zuma and his supporters’ complicity is emerging daily in the on-going public hearings before this Commission. See for details, ‘The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State,’ commonly referred to as the Zondo Commission, https://www.sastatecapture.org.za/. Accessed in April 2019.

  3. ‘Constitutions in transition’ (2018) http://www.open.edu/openlearn/people-politics-law/the-law/constitutions-transition/content-section-2.5. Accessed in April 2019.

  4. ‘State of capture: Report on an investigation into alleged improper and unethical conduct by the President and other functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of ministers and directors of state-owned enterprises resulting improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses’ (2016–2017). http://www.da.org.za/wp-content/uploads/2016/11/State-of-Capture-14-October-2016.pdf. Accessed in April 2019.

  5. ‘#Gupta Leaks. A Collaborative investigation into state capture’ (2018) http://www.gupta-leaks.com/. Accessed in April 2019.

  6. Raila Odinga and Stephen Musyoka v IEBC, Chairperson of IEBC and Uhuru Kenyatta (2017) http://www.lawyard.ng/full-judgment-of-kenya-supreme-court-nullifying-kenyattas-re-election/. Accessed in April 2019.

  7. After enormous internal and external pressure, Kabila finally held what has universally been condemned as a sham elections in which he ignored the actual winner of the presidential poll and imposed an opposition leader with whom he is alleged to have made a deal as winner. See further, ‘Congo’s elections: A defeat for democracy and a disaster for the people. https://www.theguardian.com/global-development/2019/feb/09/democratic-republic-of-the-congo-election-a-defeat-for-democracy-disaster-for-people-mo-ibrahim. Accessed in April 2019.

  8. See, Algeria’s President Abdelaziz Bouteflika resigns after 20 years. https://www.theguardian.com/world/2019/apr/02/algeria-latest-news-president-abdelaziz-bouteflika-resigns. Accessed in April 2019.

  9. See, Sudan army removes leader, rejects al-Bashir extradition. https://www.news24.com/Africa/News/sudan-army-removes-leader-rejects-al-bashir-extradition-20190413. Accessed in April 2019.

  10. See Khalid Abdelaziz. Sudanese President Bashir re-elected with 94 percent of vote. https://www.reuters.com/article/us-sudan-election/sudanese-president-bashir-re-elected-with-94-percent-of-vote-idUSKBN0NI0V620150427?feedType=nl&feedName=usmorningdigest. Accessed in April 2019.

  11. Dahl (2002), pp. 62–72.

  12. Corwin and Koenig (1956), p. 514.

  13. Rudalevige (2005); and Schlesinger (1973).

  14. Roberts (2017), p. 497.

  15. For example, in response to a question in the House of Commons about the need to introduce legislation that will define the limits of the powers of the executive, the Prime Minister responded that his role, ‘including the exercise of powers under the royal prerogative, have evolved over many years, drawing on convention and usage, and it is not possible precisely to define them.’ See, 372 Parl. Deb HC (6th ser.) (2001) col. 818W, https://publications.parliament.uk/pa/cm200102/cmhansrd/vo011015/text/11015w06.htm. Assessed in April 2019. In fact, it has been said that the crux of the checks and balances in the British system lies in an independent judiciary that ensures that no branch of government abuses its powers. See further, Bradley and Ewing (2011).

  16. See for example, the preamble, sections 1, 2, 7 and 8 of the Constitution.

  17. See for example, the preamble, articles 1–3, 19–23 and 73–80.

  18. See for example, the preamble, sections 1–3, and 8–34.

  19. ‘The beautiful people were not yet born’ (18 February 2018) Sunday Times, p. 18.

  20. This refers to the institutions provided for in Chapter 9 of the 1996 South African Constitution, which is discussed later in this paper.

  21. Examples of constitutions that clearly make the judiciary a subordinate power to the executive are articles 127–128 of the 1990 Benin Constitution; articles 209 and 219 of the 2005 Burundi Constitution; article 37(3) of the 1996 Cameroon Constitution; and articles 68 and 70 of the 1991 Gabonese Constitution.

  22. For a detailed discussion, Fombad (2016a).

  23. In these jurisdictions, law-making powers are divided into matters of exclusive legislative domain, exclusive executive domain, and concurrent legislative domain. See, for example, articles 160–165 of the Angolan Constitution of 2010; articles 98–100 of the Constitution of Benin of 1990; articles 159–161 of the Constitution of Burundi of 2005; articles 26–28 of the Cameroonian Constitution of 1996; articles 122–129 of the DR Congo Constitution of 2006; and articles 147–160 of the Gabonese Constitution of 1990.

  24. Cf. articles 61–63, 68 and 101 of the Benin Constitution of 1990; articles 8 and 9 of the Cameroon Constitution of 1996; and articles 81–86 and 149 of the DR Congo Constitution of 2006 with articles 58 and 132 of the Kenyan Constitution of 2010 and sections 110–113 of the Zimbabwean Constitution of 2013.

  25. See, in general, Fombad (2016b), pp. 58–92.

  26. In the French system widely emulated in Francophone Africa, the administrative courts deal exclusively with disputes between ordinary citizens and the government, whereas the ordinary courts deal exclusively with disputes between ordinary citizens. This jurisdictional duality can be traced to French Revolution of 1789 and is based on a strict separation between administrative and ordinary courts. See further, Bouboutt (2013), Kanté (1999) and Julien-Laferrière (1970).

  27. For a general discussion of these developments, see Fombad (2016a).

  28. See further, Adjolohoun (2016), pp. 51–79.

  29. See, Fombad (2016b), pp. 80–96.

  30. See, for example, sections 79, 121 and 167(1) of the South African Constitution of 1996 and sections 131(8)(b) and 167(2)(a) of the 2010 Constitution of Zimbabwe.

  31. See article 47 of the 2010 Kenyan Constitution and article 31 of the Zambian 2016 Constitution.

  32. Kotzé (2004), pp. 58–94.

  33. Favoreu (1999), pp. 25–39.

  34. For an example from Lusophone Africa, see article 200 of the Angolan 2010 Constitution, which reads as follows: (Rights and guarantees of individuals under public administration)

    1. 1.

      Citizens shall have the right to be informed by the public administration of administrative processes that are liable to affect their legally protected rights and interests.

    2. 2.

      Citizens shall have the right to be informed by the administration of the progress of proceedings in which they have a direct interest, and learn of decisions that are taken with regard to them.

    3. 3.

      The interested individuals must be notified, in the form prescribed by law, of administrative acts, which shall require express justification when they affect legally protected rights and interests.

    4. 4.

      Individuals shall be guaranteed the right to access archives and administrative records, without prejudice to the legal provisions for security and defence matters, state secrecy, criminal investigation and personal privacy.

  35. See the discussion by Moudoudou (2009), pp. 17–19.

  36. Lemasurier (1980), p. 1239.

  37. The discussion in this section focuses on the accountability of the president mainly because almost all African countries have adopted either a presidential or semi- presidential system of government. The only few exceptions where the parliamentary system of government is in operation is Ethiopia, Lesotho (which is also a constitutional monarchy), and Mauritius. None of these rules apply to eSwatini (Swaziland), which is an absolute monarchy where King Mswati III is in many respect above the constitution. See further, Fombad (2007).

  38. See, for example, articles 95(5) and 144–50 of the 2010 Constitution of Kenya; section 89 of the Constitution of South Africa, 1996; and section 97 of the 2013 Constitution of Zimbabwe.

  39. See article 95(6) of the 2010 Constitution of Kenya and section 111 of the 2013 Constitution of Zimbabwe.

  40. See article 132(2) of the 2010 Constitution of Kenya.

  41. See article 152 of the 2010 Constitution of Kenya; sections 92(2) and 101–2 of the Constitution of South Africa; and section 109 of the 2013 Constitution of Zimbabwe.

  42. See generally articles 135–6 of the 1990 Constitution of Benin; articles 116–17 of the 2005 Constitution of Burundi; article 53 of the 1996 Constitution of Cameroon; articles 164–7 of the 2006 Constitution of the DR Congo; article 78 of the 1990 Constitution of Gabon; and article 101 of the 2001 Constitution of Senegal. The same is also true of other civil law systems, for example, see article 129 of the 2010 Constitution of Angola.

  43. See generally article 113 of the 1990 Constitution of Benin; articles 187, 202–4 of the 2005 Constitution of Burundi; articles 34–5 of the 1996 Constitution of Cameroon; article 137 of the 2006 of the Constitution of Congo DR; articles 61-4 of the 1990 Constitution of Gabon; and articles 85–6 of the 2001 Constitution of Senegal. It should be noted, however, that Angola, under article 162 of its 2010 Constitution, provides very limited powers of legislative control over the executive.

  44. Bradley and Ewing (2011), p. 84.

  45. See further, Fombad (2015), p. 3.

  46. Economic Freedom Fighters v Speaker of the National Assembly & Others (2017; Democratic Alliance v Speaker of the National Assembly and Other case (EFF case) (2017).

  47. For example, Yoweri Museveni of Uganda did so, initially, to remove the two-term limit and, later, to remove the age limits in the Ugandan 1995 Constitution. See, Reuss and Titeca (2017) https://www.opendemocracy.net/kristof-titeca-anna-reuss/removing-presidential-age-limit-in-uganda-power-of-cash-and-coercion. Accessed in April 2019; and Fombad and Inegbedion (2010) pp. 1–29.

  48. For example, article 11 of the Cameroon Constitution of 1996 states that ‘[t]he Government shall implement the policy of the nation as defined by the President of the Republic’. See also articles 118(1) and 131 of the 2003 Constitution of Rwanda and articles 28 and 65 of the Constitution of 1990 Constitution of Gabon.

  49. These articles virtually cover every important functions that the president is required to perform under the Constitution.

  50. See similar immunities provided for in articles 78 and 81 (introduced in 2000) of the 1990 Constitution of Gabon. Article 115 of the 2003 Constitution of Rwanda states that a former head of state shall not be prosecuted for any crimes committed whilst in office when no proceedings for such crimes were brought against him whilst in office under article 145(8), but the possibilities of a successful prosecution under this article are practically nil. Once again, these immunities were introduced by constitutional amendments in 2010.

  51. The manipulation of presidential term limit provisions has revived the pre-1990 spectre of life presidencies in the 12 countries where these provisions have been removed or manipulated. For example, although Burundi and Rwanda have manipulated their constitutions to give the presidents long tenures, there is every reason to believe that at the end of these prolonged tenures, the provisions will be changed again. Cameroon is a typical example of this phenomenon. President Paul Biya yielded to pressure to accept a two term limit only after the presidential tenure was extended from 5 to 7 years in 1996. However, in 2008, just before the end of his second term, the term limit provision was entirely removed.

  52. See, for example, article 143 of the 2010 Kenyan Constitution and section 98 of the Zimbabwean Constitution.

  53. Accessed at, http://www.saflii.org/za/cases/ZACC/2017/47.pdf. Accessed in April 2019.

  54. In fact, section 237 of the South African Constitution states that “all constitutional obligations must be performed diligently and without delay”.

  55. Dhlamini (2018) ‘NPA reinstates corruption charges against Zuma’ http://www.engineeringnews.co.za/article/npa-reinstate-corruption-charges-against-zuma-2018-03-16/rep_id:4136. Accessed April 2019.

  56. There is a seventh institution mentioned in this chapter, the Independent Broadcasting Authority, but unlike the other six, its basic framework has been established by ordinary legislation.

  57. See, for example, the Judicial Service Commission (in section 178); the Public Service Commission (section 196); the National Prosecuting Authority (sections 179–180); the Financial and Fiscal Commission (sections 220–222); and the South African National Reserve Bank (sections 223–225).

  58. Section 181(2)–(5) enumerates them as follows: ‘(i) These institutions are independent and subject only to the constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice. (ii) Other organs of state, through legislative and other measures, must assist and protect these institutions, to ensure the independence, impartiality, dignity and effectiveness of these institutions. (iii) No person or organ of state may interfere with the functioning of these institutions. (iv) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.’

  59. A number of cases have illustrated how courts based on the entrenched principles are ready to protect the independence and impartiality of these institutions. See, for example, New National Party of South Africa v. Government of the Republic of South Africa and Others (1999), para 191; Independent Electoral Commission v. Langeberg Municipality (2001); and Economic Freedom Fighters v Speaker of the National Assembly & Others (2017) and Democratic Alliance v Speaker of the National Assembly and Others (2016).

  60. This is the case in many Francophone and Lusophone countries. For example, see the national councils in article 268 of the Burundian Constitution of 2005, section IV of the Angolan Constitution of 2010 on ‘essential justice institutions’, and some of the institutions provided for under the Moroccan Constitution of 2011 and the Tunisian Constitution of 2014.

  61. Two examples of partial transplantation approaches are found in the draft Tanzanian Constitution and the 2016 Constitution of Zambia. The latter provides for 18 commissions and two independent offices.

  62. This chapter contains general principles that regulate ten commissions and two independent offices.

  63. These consist of the Zimbabwe Electoral Commission (sections 238–241); the Zimbabwe Human Rights Commission (sections 242–244); the Zimbabwe Gender Commission (sections 245–247); the Zimbabwe Media Commission (sections 248–250); and the National Peace and Reconciliation Commission (sections 251–253).

  64. These consist of the Zimbabwe Anti-Corruption Commission (sections 254–257) and the National Prosecuting Authority (sections 258–263).

  65. Other commissions dispersed in different parts of the Constitution are the Judicial Service Commission (sections 189–191); the Civil Service Commission (section 202); the Defence Forces Service Commission (sections 217–218); the Police Service Commission (sections 222–223); and the Correctional Service Commission (section 231). In addition, the Auditor-General is provided for in sections 309–314; although this office is not brought within the general provisions regulating commissions in sections 318–323, it too plays an important role in promoting accountability.

  66. Public Protector ‘Secure in comfort: Report on an investigation into allegations and implementation of unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the private residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal Province’ (2014). http://www.publicprotector.org/library%5Cinvestigation_report%5C2013-14%5CFinal%20Report%2019%20March%202014%20.pdf. Accessed in April 2019.

  67. Essop 2016, http://ewn.co.za/2015/08/07/EFF-puts-pressure-on-ConCourt-over-Nkandla Accessed in 2019.

  68. Meanwhile, the ANC, with its 249 members in a parliament of 400, had used all manner of delaying tactics to frustrate the process of holding the President accountable; it was therefore no surprise when it rejected the Public Protector’s report.

  69. Economic Freedom Fighters v Speaker of the National Assembly & Others, and Democratic Alliance v Speaker of the National Assembly and Other, para 103.

  70. Ibid. at para 104.

  71. It is also important to note that throughout his 9 years in power, Jacob Zuma succeeding in completely neutralising critical accountability institutions such as the National Prosecuting Authority, the different branches of the police and, in general, the security cluster.

  72. It can be argued that corruption is the greatest threat to peace and stability in Africa, because by robbing people of their right to a better life, it renders constitutionalism a meaningless goal.

  73. See, generally, McCormick (2001), pp. 297–313.

  74. See, Ellis (2000) and Lindberg (2006).

  75. See generally, Bratton and van de Walle (1997) and Schedler (2015), p. 36.

  76. Diamond (2015), pp. 141-155.

  77. Norris (2017).

  78. Freedom House ‘Freedom in the world 2017. Populists and autocrats: The dual threat to global democracy’ (2017). https://freedomhouse.org/report/freedom-world/freedom-world-2017. Accessed April 2019.

  79. Bratton and Logan (2017), p. 17.

  80. Ibid.

  81. Fombad (2018), pp. 1–25.

  82. Böckenförde (2011), pp. 1 & 44. The author points out that the term ‘level of government’ refers to that part of the hierarchy of government through which state power is employed at a certain place in the vertical order of a country, such as national, regional or local level. By contrast, ‘level of administration’ is used to describe an institutional setting that provides administrative support for the implementation of governmental policies at these levels, whether regional or local. Unlike ‘levels of government’, ‘levels of administrations’ are responsible only for implementing polices, not making them.

  83. There are some who trace this centralisation streak to pre-colonial African systems of governance, but there is no doubt that if indeed this was so, the dictatorial and centralised system of colonial governance systems reinforced this. See further, Cappelen and Sorens (2018).

  84. Ivanyna and Shah (2014), pp. 1–61. http://dx.doi.org/10.5018/economics-ejournal.ja.2014-3. Accessed in April 2019.

  85. For example, African leaders throughout the continent championed the centralisation of governance under the pretext of promoting national unity among the diverse communities which had been artificially forced together as states during the partitioning of the continent in 1884, maintaining that centralisation facilitated a shared political identity, nation-building and development. A key element of this was the widespread abolition, whether de jure or de facto, of the multiparty system in favour of the one-party system. It was argued that multipartyism would promote division and tribalism and so waste national resources at a time when the newly independent states, under-resourced and comprised of numerous culturally and religiously heterogeneous groups, needed to focus on national unity, political stability and rapid economic development. It was also argued that the one-party system was the only one that corresponded adequately with traditional African systems of governance. See further, Tunteng (1973).

  86. Olowu (2012), p. 44.

  87. See further, Kälin, and Litvack.

  88. Opposition parties are in control of more than half of Africa’s electoral democracies. For example, major cities in countries such as Benin, Cameroon, Ghana, Kenya, Namibia, Nigeria, South Africa, Zambia and Zimbabwe are controlled by opposition parties or in some cases, coalition of opposition parties. See further, Resnick (2010).

  89. Some reports predict that in the next 30 years, urban dwellers will outweigh rural dwellers for the first time in Africa. In some countries, like Gabon, 87% of the population already lives in the urban area. See further, Saghir and Santoro (2018).

  90. See further, Resnick (2018).

  91. See Ibid.

  92. See, ibid.

  93. Bownes (2009), points out that the ANC-led government has on numerous occasions made overtures to reverse progress on devolution and potentially even eliminate the country’s nine provinces. It is a threat that has become real when it lost the major cities in the 2016 local government elections.

  94. See further, Rakner and van de Walle (2007), Teshome (2011), and Uddhammar et al. (2011).

  95. There is however need to point out that a good design is not everything. Zimbabwe’s reasonably good design has made little difference because the decentralised framework has hardly been implemented.

  96. Fombad (2018), pp. 1–25.

  97. The so-called Arab Spring started in Tunisia in 2011 and saw the departure of former dictator Zine Ben Ali and others. It was ironic, because whilst sub-Saharan Africa was in turmoil in the 1990 s, the dictators in the north, such as Abdelaziz Bouteflika of Algeria, Hosni Mubarak of Egypt, and Muammar Gaddafi of Libya, looked unperturbed and firmly in charge.

  98. See, for example, articles 47 and 51 of the 2010 Angolan Constitution, article 31 of the 1990 Benin Constitution, article 37 of the 2010 Kenyan Constitution, and sections 59 and 65(3) of the 2013 Zimbabwean Constitution.

  99. See O’Toole (2011) ‘The right of revolution: An analysis of John Locke and Thomas Hobbes’ social.

  100. See articles 39(1) and (4) and 62(3).

  101. Eastwood Jr (1993), pp. 299–347.

  102. ‘People, spaces, deliberation’ 2010 http://blogs.worldbank.org/publicsphere/quote-week-jeremy-bentham. Accessed in April 2019.

  103. An extract from a speech by the famous American abolitionist and liberal activist to members of the Massachusetts Anti-Slavery Society on 28 January 1852. http://www.thisdayinquotes.com/2011/01/eternal-vigilance-is-price-of-liberty.html. Accessed in April 2019.

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    Charles Manga Fombad

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Fombad, C.M. Taming Executive Authoritarianism in Africa: Some Reflections on Current Trends in Horizontal and Vertical Accountability. Hague J Rule Law 12, 63–91 (2020). https://doi.org/10.1007/s40803-019-00091-5

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