Subpar governance has consistently been a major problem facing the African continent. Over recent years, Sub-Saharan Africa has been the fastest-growing economic region in the world, but this progress has not stifled almost unanimous (in my experience) reports from Africans that we are governed by corrupt, nepotistic, sometimes brutal, political elites. It is a rarity to hear about excellence in African government, and for as long as this remains the case, African countries will never be respected as worthy players on the world stage.
In my experience working in public policy, there are three practices of good governance that African states, or indeed any state, should adopt in order to shake-up the status quo of corruption and mistrust.
1. Adhere to the Imperatives of the Rule of Law
For the Rule of Law to be taken seriously, it must be understood.
Fundamentally the Rule of Law means that society is governed by impersonal, evidence-based, and well-reasoned rules that are derived largely from settled legal principles. The opposite of the Rule of Law is the rule of man or rule ‘by’ law, which subordinates the law to the whims of politicians and the political elite. Even in free societies under the Rule of Law, politicians, like everyone else, are driven by regard for their own self-interest. This is primarily why the Rule of Law, as an institution that limits arbitrariness and caprice, is crucial.
To achieve the Rule of Law, government has to comply with certain legal prescripts, handily summarised by the Rule of Law Project of the Free Market Foundation: Law must be clear, predictable, accessible, not contradictory, and have only prospective effect;All legislation that makes provision for discretionary powers, must also incorporate objective criteria by which those powers may be exercised, and the purpose or purposes for which the powers may be exercised;All law must apply the principle of equality before the law;All law must be applied fairly, impartially, and without fear, favour or prejudice;The sole legitimate authority for making substantive law is the legislature, and this authority may not be delegated to any other entity;No law may have the aim or the effect of circumventing the final authority of the courts;No one may be deprived of or have their property expropriated, except if done with due process for the public interest, and in exchange for compensation that is just and market-related;The law must adequately protect individual rights;All law must comply with the overriding principle of reasonableness, which comprehends rationality, proportionality, and effectiveness; andThe legislature and organs of state shall observe due process in the rational exercise of their authority.
These imperatives give concrete expression to the Rule of Law, which is, more often than not, treated merely as an abstract filler term.
In particular, these imperatives would make it exceedingly difficult for rent-seekers in government to abuse legislation and process to fill their own pockets and further their own interests. With the Rule of Law adhered to, citizens will know with certainty how government will conduct itself, and as a result will be able to plan their affairs accordingly.
2. Conduct Impact Studies on New Interventions
Impact assessments are an underappreciated aspect of the Rule of Law. After all, how will we know whether new legislation, regulations, or policies are arbitrary, or comply with some of the imperatives listed above, if there is no detailed study on the impetus and probable consequences of those interventions?
These impact studies must be undertaken by impartial third parties that are not wedded to the same political or personal objectives as the government department sponsoring the intervention. While government can, and ideally should, conduct its own impact assessments, it is crucial that there also be assessments not tainted by confirmation or selection bias. In South Africa, impact assessments invariably sing praises for proposed interventions before any evidence has been considered, and this is assuredly not how it should be.
Furthermore, impact studies must be balanced. Rarely is there unanimity about the introduction of a new intervention, and impact studies must bear this out. Where there is disagreement, it must be acknowledged, and each notable perspective on the intervention must be considered and analysed in good faith.
Finally, impact assessments must be intellectually honest. This might seem obvious, but in my experience, these studies often make grandiose claims without providing any evidence or argument in support thereof, or they accept claims made by government officials as truthful without critically examining their underlying premises. Evidence, referencing, argument, clear reasoning – these must be the guiding principles of any proper impact study.
With these studies done, citizens are able to judge whether a proposed policy, regulation, or bill will serve a public purpose or simply benefit the political elites and their commercial allies.
3. Engage the Public in Good Faith before Decisions are Made
Impact studies also enable the public to engage government properly about any new interventions or decisions that government wants to make. Without authoritative impact studies, citizens are often left with no information with which to approach government to either support or oppose exercises of public power.
Any engagement with the public must be in good faith rather than a mere box-checking exercise.
We can expect that when government proposes a new intervention, it will be biased in favour of that intervention. After all, the minister or official who sponsored it will inevitably have an ideological, political, or personal reason for having done so. This means that when government proceeds to showcase the proposal to the public and receive comments, it wants to see support, not opposition. But government must know that it exists to serve the people, not the other way around!
Government must consider the public’s support for their interventions, but they must take opposition particularly seriously. Constitutionalism, in theory observed throughout Africa, is all about limiting exercises of public power – this means there must be a healthy default assumption against, not for, new interventions. If a sizeable minority of people oppose something, I believe it would be important for government to either secure their buy-in, or to abandon the plan. Imposing new interventions on minorities simply because they have a temporary majority supporting them is not an indication of good and fair governance.
Adopting the three concrete practices described in this article would create an environment of accountability, trust and cooperation between governments and their citizens. This will be desperately needed in the aftermath of the COVID-19 pandemic that is sweeping the African continent and the world. Then, more than ever, will we need to see the interests of the political elite being subordinated to the interests and enterprises of the African people.
Martin van Staden is the Chief Advisor for Legal Policy on BridgeAfrica’s Board of Advisors and the Head of Legal (Policy and Research) at the Free Market Foundation in South Africa. He is pursuing a Master of Laws degree at the University of Pretoria and is author of ‘The Constitution and the Rule of Law: An Introduction’ (2019). He writes in his personal capacity.