Stricter adherence to PAIA will rebuild public trust

By Larry Kirsch

The Covid-19 pandemic, precipitous global economic collapse, and demonstrations of civil protest from Minneapolis to Hong Kong and South Africa’s Western Cape have all demanded a decisive response from public leaders. The results, so far, have not instilled excessive confidence in the ability of governments – right, left, or centre – to solve problems as complex and consequential as these. Before trusting public leaders to do the right thing, citizens normally apply two critical guides to judge their reliability. The first corresponds to their view of a government’s competence; the second, to its ethical behaviour.

South Africans have been among the most demanding graders on both counts. The problem is that without access to a sufficient reservoir of public trust, a leader’s call for civic sacrifice and solidarity may not receive the desired response when needed. Some in-country analysts including Patrick Bond have made the point that extreme structural inequalities in South Africa have virtually crippled the government’s capacity to mobilise support for solutions requiring solidarity. Others, such as RW Johnson, tell us that the cumulation of corruption, government incompetence, and mismanagement under former president Jacob Zuma – and to a lesser extent the current administration – have depleted South Africa’s stock of public trust. On a more optimistic note, Bruce Whitfield concludes: “[C]ivil society has been pivotal in fighting for the rights of citizens, especially the marginalised, and [has forced] the hand of government… to acknowledge its responsibility, its duty of care, and its obligations under the constitution.”

Trust in government at low ebb

Current uncertainties and stressful conditions in every country have placed enormous new burdens on governments. They are also testing citizens’ responsiveness in unparalleled ways. The leading international survey of trustworthiness, the Edelman Trust Barometer, reported this past January that the citizens of South Africa found their national government severely wanting on both counts.

Overall, trust in government among South Africans ranked lowest among the 28 countries surveyed – lower than Russia and Argentina and well below India and China. Just as the coronavirus broke out in Wuhan, the Edelman survey was being introduced to the World Economic Forum in Davos.

In the case of South Africa, the assessment of competence has been shaped largely by chronically stressed economic conditions and especially the worsening of unemployment. Published estimates were projected to reach 35% by year-end; but many analysts commented that even that stratospheric projection was probably too optimistic. Three months after the Trust Barometer was published, the outlook for improvement on the economic front plummeted still further as the country absorbed a double hit. It was forced to invoke a coronavirus lockdown that froze most economic activity indefinitely.

Simultaneously it received a credit rating downgrade from Moody’s that was universally anticipated to make government borrowing increasingly costly and to devalue the rand (which sank by as much as 10% against the dollar between March and May). Both events hit South Africa on 27 March. This improbable confluence of events exacerbated what was already a virtually impossible performance burden facing the relatively new Ramaphosa government. The cost of addressing Depression-level structural unemployment was now certain to be compounded by new fiscal requirements for mitigating the parlous conditions of public health, basic sanitation, housing, and hospital infrastructure – all of which were laid bare by the coronavirus.

At the same time, South Africans found the other pillar of public trust, their government’s ethical behaviour, to be grossly repugnant. Kleptocracy, nepotism, and other forms of entrenched corruption were ubiquitous and had already resulted in deeply corrosive injuries to the daily experience of common citizens. Not only was corruption invasive – adhering to virtually every place, sector, transaction, and stratum of society – it was nefarious, resulting in feelings of distrust and cynicism as well as concerns about racial and class polarisation and unfairness.

State capture laid bare

Civic distrust among South Africans is hardly a new phenomenon. A comprehensive and actionable report on state capture was issued in November 2016 by the highly regarded then public protector, Thuli Madonsela. Her report titled State of Capture was unsparingly critical of the current president Jacob Zuma and his closest cronies – the rapacious Gupta family. Most important, Madonsela’s report was explicitly designed as a “people’s document”. As such, it gave prominence to the burden of corruption on everyday citizens and civil society. As part of her work, Madonsela dug into the dysfunctions of vital public services and state-owned enterprises (SOEs) such as electric power, rail, and air transport. She dissected the looting of scarce state resources and its impact on dismal infrastructure performance including rolling electricity blackouts, service cuts, excessive rates, and the bankruptcy of public entities such as the national airline.

Madonsela located much of this behaviour in the negligent and blatantly corrupt oversight by top public management including the boards of the SOEs. In a 2013 interview with the civil society organisation Corruption Watch, Madonsela highlighted three factors she regarded as root causes of the culture of corruption in South Africa:

• A “competency deficit” in public contracting and supply chain management.
• Lack of respect for rules and authority.
• Inadequate accountability and the impotence of consequences for wrong-doing.

Strong words, weak action

It should come as no surprise that the corrupt behaviour of former president Jacob Zuma and his minions was reinforced by secrecy and the failure of government to abide by the Promotion of Access to Information Act (PAIA), the equivalent of the US Freedom of Information Act (FOIA). Covering up crucial actions and governmental decision-making put a severe dent in the ability of the nation’s civil society institutions to hold political actors accountable. This record is thoroughly documented in the painstaking work of organisations such as the amaBhungane Centre for Investigative Journalism, the Scorpio investigative unit at the Daily Maverick, and the civil society umbrella, the Access to Information Network. Many of the factors that Madonsela highlighted in her 2013 interview and subsequently in State of Capture endure to this day.

All of this brings us to the question: can the Ramaphosa government use the pandemic and economic crises as leverage to galvanise public trust and to move forward? What is he doing to change the decline? Are there unexploited opportunities available?

A review of President Ramaphosa’s numerous speeches and statements since the beginning of this year and especially since the outbreak of the coronavirus in South Africa in early March, confront us with a paradox. On the one hand, his message and tone have been almost Churchillian. He has come across as decisive, inclusive, and progressive, particularly in relation to the call for solidarity and the government’s commitment to the apportionment of healthcare, work, food, and other public support on the basis of need. “We are committed to mobilise every resource at our disposal to support the most vulnerable, and to give the greatest support to those most in need”.

But as stirring as the rhetoric has been, one wonders whether he has complemented it with equivalent action? On this score his public presentations have been eerily silent on the crucial issues of openness and public accountability. Both are obvious prerequisites for mobilising public sacrifice and popular support for Ramaphosa’s agenda of social cohesion. Without a strong, good faith commitment and lots of work on his part, it is virtually assured that the dispersal of massive amounts of public funds, contracts, and jobs (as necessitated by the pandemic crisis) will be a magnet for corruption. The same can be said for the restoration of government ethics. As constitutional law professor Pierre de Vos has observed, crises such as this provide a clear field for authoritarian tendencies to flourish.

If Ramaphosa truly wishes to begin a “radical” restructuring process based on principles of fairness, social cohesion, and inclusive growth as outlined in his 21 April speech in Tshwane, he will have to deal squarely with the persistence of the, culture of corruption. This promises to be exceedingly difficult. In another speech delivered on 13 May, just three weeks after his Tshwane presentation, Ramaphosa offered an amalgam of mea culpa and aspiration:“Some of the actions we have taken have been unclear, some have been contradictory and some have been poorly explained. Implementation has sometimes been slow and enforcement has sometimes been inconsistent and too harsh.” Beyond sheer confusion, however, the discrepancy between speech and action could be seen as an exercise in political Kabuki in which the unheard dialogue behind the curtains is far more important than the words spoken centre-stage.

For Ramaphosa to walk the talk – and to be recognised as having done so – one thing he should immediately consider as a priority is personally backing robust implementation of South Africa’s PAIA. As Professor Wilhelm Peekhaus has pointed out, PAIA has been routinely ignored or flagrantly flouted to sustain the long-standing Zuma cover-up. PAIA, like the FOIA in the US, represents a gateway to transparency and a prerequisite of public accountability. It is a vital antidote to entrenched corruption and is thus a foundation for turning South African governance around.

Embracing PAIA has several benefits

Understandably, openness and compliance with PAIA is not all a bed of roses; nor is it anything close to a comprehensive solution to civic distrust. But it does serve practical and symbolic purposes that have vital importance right now. Although putting PAIA to work in practice might be seen by Ramaphosa, a practising politician, as a risky and excessively self-revelatory enterprise, there are potentially offsetting incentives that might appeal to him. Here are four that go beyond well-known “good government” nostrums:   

• Distrust over the (re)distribution of resources, be it for funding medical care, emergency food supplies, or assistance for small businesses, will understandably trigger suspicions over fairness, collusion, and preferential treatment. An energetic policy of transparency and full disclosure can provide important raw material for the media, especially for investigative journalists.  Probing, independent reporting, and investigative work by civil society organisations might offer government a layer of credibility that could never be achieved by simply cranking out its own press releases.
• Some of the most controversial decisions made as part of the pandemic response have revealed incoherent and uncoordinated decision-making at the upper echelons of government. They have involved Ramaphosa, directly, together with members of his cabinet team. A prime example is the unpopular government ban on the legal sale of tobacco and alcohol. The rationales offered have ranged from muddled to bizarre (including a theory linking cigarette smoking to Covid-19). The results have been the diversion of consumption to black market sources, an attendant loss of significant tax revenue, and considerably higher consumer prices paid for tobacco and alcohol without making a dent in their consumption. Through it all, Ramaphosa has appeared somewhat ambivalent, sometimes openly at odds with members of his own cabinet. When asked to provide details of the alcohol and tobacco decision-making taken by the government’s umbrella National Coronavirus Command Council, the government declined. It is now facing a lawsuit challenging the ban brought by the tobacco industry.

Oddly enough, PAIA could provide Ramaphosa a vehicle for governing his own cabinet with greater discipline. Greater public transparency would deprive Ramaphosa and his team the easy way out of burying incoherence and internecine squabbles by hiding them behind a solid wall of non-disclosure.

• Like it or not, the International Monetary Fund (IMF) and the credit rating agencies such as Moody’s are amongst the most powerful stakeholders in South Africa’s public life. Their assessments of government’s openness and honesty, especially in the economic domain, are crucial to the ratings they award and the financial relationships they maintain with South Africa. Demonstrating improved compliance with PAIA would be a tangible and productive way to begin the process of restoring confidence – whether or not South Africa ultimately decides to seek IMF loan assistance.
• The Zuma regime was well known for its secretive and unethical behaviour. Its management of public information, as exemplified by its deplorable record of stewardship of PAIA, epitomised its contempt for transparency and public accountability. If Cyril Ramaphosa is seen as being a reliable advocate for PAIA, it will be regarded as a signal of his administration’s credibility and ethical values and a turning point for his leadership.  

All governments are facing the most demanding and consequential problems of public leadership that have been experienced at a single time. Each is in vital need of help based on a trusting relationship with their citizens and institutions. Openness and a willingness to be held to full account form the basis of maintaining a trusting relationship. Leaders, including those in South Africa, should be looking for positive new ways to put transparency and accountability at the top of their agenda.

Larry Kirsch is an economist in Portland, Oregon. He lived in Cape Town in 2016-2017 and got to see something of the daily effects of public corruption up close. He is currently working on a third book dealing with consumer protection and the interplay of civil society and government.