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Sharon Hofisi Legal Letters
We read about public administration, the implementation of government policy, every day and it can only be averred that it is generally in a Lazarus state.All we have to buttress this averment are widespread reports on acts of maladministration such as kleptocracy, corruption, nepotism (including “homeboy” and “home-girly” acts), criminal abuse of office, misappropriation of public funds, concealing transactions, the raising of false flags, greasing, bribery, “facilitation” fees, kickbacks, red tapping, and so on.

It only takes one peek inside a newspaper to see that public administration points to a throbbing picture of governmental behaviour and activity. Apposite is the need for the general populace and all government functionaries to strive to shun malpractices lest they become cancerous. Zimbabwe has one of the fastest growing rates of corruption in the world, largely due to growing endemic forms of systemic and subtle corruption.

Studies by institutions such as Transparency International Zimbabwe are crucial in understanding practices such as corruption. Where do we get the general answer to curb acts of maladministration? The challenges keep swelling on a daily basis. Chapter 9 of the Constitution of Zimbabwe, 2013, provides the best starting point.

There are about eleven principles that are found in section 194 of the Constitution. They are listed as part of the “basic values and principles governing public administration”. They govern the exercise of administrative behaviour in all tiers of Government, including institutions and agencies of the State, and Government-controlled entities and other public enterprises.

Before dealing with the principles, it is important to briefly deal with the convergence between politics, public administration and the law. Idealistically, the public administration-politics dichotomy owes its origins to Woodrow Wilson. His starting point was always to offer an answer to that ubiquitous question: what is the relationship between politics and public administration?

Those in academia know their way around this question. Politics largely answers the “what and when” of governance whereas public administration answers the “how and why” of governance. I cannot go into detail in this respect in this article. Suffice to employ Professor Peter Self’s description of the link between politics and administration as shown in his book, “Administrative Theories and Politics: An inquiry into the Structure and Processes of Modern Government”, 1972, published by George Allen and Unwin Limited.

He states in relation to the origins of the subject of public administration that, “almost everywhere the study of public administration developed as an offshoot of either political science or public law, and until recently administration as an academic subject was the very plain step-sister of these older disciplines”.

That said, the principles of public administration can be studied from the perspective of the older disciplines. For instance, the ubiquity of politics cannot be ignored in studies of any academic discipline — including public administration. Similarly, the green lights and red lights in the sphere of public law (constitutional and administrative law) are used to explain the law and policy dichotomy.

Although law is not policy, and policy is not law, policy makers are given some green lights by the law to do certain things for the good of governance. Similarly, the law imposes some red lights which policy makers and implementers must respect. The Constitution is the highest source of signposting and benchmarking the red lights and green lights on administrative activity.

The constitutional principles

People use the following constitutional principles to demand vertical accountability from public administrators. Vertical accountability is used here to simply describe the relationship between public officials as part of policy givers and implementers and the citizens as part of policy takers, influencers and consumers.

The first deals with the maintenance and promotion of a high standard of professional ethics. Public administrators urgently need to have a code of conduct to regulate their behaviour. Some arms of the State have codes of conduct for their members. Judges in Zimbabwe lead the pack in this regard. Because the Judiciary is a State institution under the separation of powers or functions doctrines, other State institutions and agencies can take a leaf from this thin but detailed code of judicial ethics.

The second speaks to the promotion of efficient and economic use of resources. The role of human and other resources in public administration cannot be underestimated. Most importantly, human resource controls the efficient and economic use of other resources (physical capital such as transport, power, communications; economic capital and so on).

Thirdly, there is need for public administration to be development-oriented. I may not deal with development theories and crucial issues such as human development index here, but it must be stated that with the global emergence of economic infrastructural development in all spheres of governance, public regulators and development analysts must emphasise on the role of development policy in economic growth, where development policy refers to the measures, which promote efficiency in public sector management and ancillary fields of the Government. The Government of Zimbabwe has declared 2018 the Year of the People. Important issues to focus on should include access to their income and involving marginalized societies in the development agenda.

Fourthly, services must be provided impartially, fairly, equitably, and without bias. This “non-bias” norm is pitched from a natural law and normative perspective. For administrators, perhaps the most significant challenge facing them is institutionalised bureaucracy. Providing services in time is difficult where there is no decentralisation or where subordinates are not empowered to make important decisions on certain issues. One way to go is for government functionaries to delineate responsibilities of certain departments and advise the public of the new developments.

Fifthly, there is need for responsiveness to people’s needs. Attached to this is the element of “reasonable time” and “public participation in policy making”. Although responsiveness is self-explanatory, the concept of reasonable time is elusive.

Now that public participation is obligatory, there is need for the public to be involved in benchmarking the concept of reasonableness. The Government and the people are called upon to be both the referee and player in this regard. Of course, cognisance should be made to the fact that responsiveness is a founding principle of good governance that is listed in section 3 of the Constitution. It is also a consideration that is used by courts of law to interpret the Bill of Rights in terms of section 46 of the Constitution.

Sixthly, accountability to the people and Parliament is obligatory. Whereas administrators have their own internal controls, the Constitution makes the people and Parliament part of the external controls on administrative activity.

Given that maladministration forms such as corruption appear to be so endemic to our public life, the people and Parliament are made the watchdogs on public administration. From the perspective of direct democracy, the State functionaries must be accountable to the people because State institutions derive their authority from the people who vest their authority in different functionaries. Using indirect or representative democracy, the ultimate authority of the people is reflected in the composition of Parliament where people vote for their mouthpieces on various administrative activities. Constitutionally, accountability is a founding principle of good governance.

Additionally, section 119 of the Constitution clearly obligates Parliament to protect the Constitution and promote democratic governance in Zimbabwe. It is also obliged to make sure that the State and all institutions and agencies of government at every level act constitutionally and in the national interest. If the State fails to uphold the Chapter 9 principles on public administration, Parliament is constitutionally mandated in terms of section 119 (3) of the Constitution to make sure that the State is accountable to it. Members of Parliament must ensure that concerns from their constituencies are debated candidly and measures are taken to address them.

The logical corollary to the above is that Zimbabwe must also move towards a civil economy. Institutional accountability demands that State institutions must work together with oversight institutions in a civil economy. Richard Rose stated in 1992 that democracy presupposes a civil society, recognition by the State that individuals, informal groups, and formal institutions should be free to pursue their interests and ideals independent of the State in most spheres of life.

Of course this is not to say that there should be some remote sensing of the civil society. A civil economy allows the State to move away from central planning to the market. It is hoped that the pragmatic approach of President Mnangagwa’s administration may also be pitched in this regard. There are various CSOs that are involved in agriculture such as Women in Land Zimbabwe (WLN), the backbone of Zimbabwe’s economy. These can work with government since they are also close to the communities they work with. They can also work with development aid funders from the more developed communities to improve the living standards of Zimbabwean farmers.

Seven, State institutions and agencies are obliged to cooperate with each other. Professor Self argues that conflict and competition between departments and agencies is common. Competition arises from the demands of agencies for adequate resources and powers to pursue their goals successfully, or to enlarge their zones of jurisdiction. They also compete for clients and for political sources of support.

Self (1972) argues that even where an agency does not act assertively, it often finds that it cannot achieve its tasks effectively without changing the policies of an agency in some related field. The logical corollary in this arrangement is that agencies may be entangled in conflicts of some nature. Administrative conflict usually becomes direct and intense in instances where agencies share powers for the performance of some service.

The new political administration under President Emmerson Mnangagwa merged some ministries. As such, coordination between those ministries is needed using the constitutional framework. The coordination can be done using the territorial analogy on agency conflict by Anthony Downs. Each agency occupies a policy zone which has a heartland, interior zone, a no-man’s land and a periphery. The President Mnangagwa administration has moved to allocate goals to ministries in his first 100 days as President of Zimbabwe. Assertive action can only be realised if ministries cooperate horizontally as institutionally established, and vertically, through provincial, regional, departmental and child-parent hierarchies.

Eight, transparency must be fostered through the provision of timely, accessible and accurate information. Transparency is again a founding value of good governance that is listed in section 3 of the Constitution. It, therefore, follows that it is also used to interpret the Bill of Rights under Chapter 4 of the Constitution. For instance, section 62 (1) of the Constitution protects the right of access to information which is required in the interests of public accountability.

Those requesting such information are constitutionally obliged to demonstrate the public accountability threshold. The constitutional right under review is framed in such a way that ‘every Zimbabwean citizen or permanent resident, including juristic persons and the Zimbabwean media’, can access such information. The State is obliged to uphold the four duties on fundamental rights that are listed in section 44 of the Constitution. They include to: respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4.

Nine, it is obligatory to have good human resource management and career-development practices aimed at maximising human potential. Models of talent identification and management, traditionally developed from the private sector, must be identified and tailor-made to suit the public sector. The Constitution has laid a value framework to define recruitment and on the job training. It should be cautioned that the normative values in the Constitution must be brought closer to social and administrative values. Essentially, staff recruitment and retention schemes must not cultivate a sustainable culture of career development. There are various traditional theories of a managerial type, such as the allocation of functions and relations of staff and line which are not examined in this article but are considered important within a governance context. The end result is that the quality of staff in public administration should be one which focuses on institutional accountability.

Ten, there is need for broad representation of the diverse communities in Zimbabwe. Of course this moves a long way towards curbing various forms of maladministration such as nepotism. This fits into the larger picture on New Public Management (NPM) approaches which include a broad-based system of employment, training, and advancement of careers. Steeped in this are considerations such as merit, ability, objectivity, fairness, and equality of men and women and inclusion of persons with disabilities which are constitutionally required in terms of section 194 (1) (k).

Civil economy

Most importantly, there is a constitutional fundamental that is found in section 194 (2) of the Constitution. The State is obliged to take measures, including legislative ones, to promote these values and principles. Chiefly, the appointments must be primarily based on merit. The point should be made that in governance, various checklists have been provided by multilateral organisations such as the World Bank. As emphasis is placed on civil economy, public administration must be understood as a virile living system of governance, which considers that no one form of administration is efficient, let alone functional, without a normative framework, which is both a check on executive excesses on the one hand and, on the other, the basis of signposting and benchmarking public administration, financing, management, policing and critiquing.

Despite the solution bent of public administration, actors in this field are constitutionally mandated to produce theories of administration that are enmeshed in the constitutional principles discussed above. Their “how and why” type of prescriptive theories can be used by political scientists who normally produce their “what and when” type of objective and sociological theories. In all this, it has been noted by thinkers such as Professor Peter Self that public administrators generally fail to produce such theories, and concentrate instead upon more descriptive types of study. The danger in this is that they would write more on the science of politics and not the management of politics. The result follows the cause — ordinary politics may not be managed properly and the constitutional fundamentals would be ignored by ordinary politicians. It is hoped that political administrators in both ruling Government and opposition politics manage politics and equip the political scientists to “describe” the politics of the day.

• Sharon Hofisi is a lecturer of Law and Public Administration. For feedback, write to [email protected] <mailto:[email protected]>