Enhancing democratic accountability through constitutionalism in South Africa

Abstract

The central question in this thesis is whether full compliance with the tenets of constitutionalism can enhance democratic accountability in South Africa. The thesis examines historical and contemporary issues on the crisis of accountability and constitutionalism to answer the question. The analyses of electoral, legislative, executive, administrative and legal accountability in the thesis reveal that indeed, full compliance with the tenets of constitutionalism can enhance democratic accountability in South Africa. The thesis attempts to add new knowledge and insights to existing knowledge by closing gaps in the legal discourse on democratic accountability. As far as could be reasonably ascertained, the thesis is one of the first of its kind to trace the development of constitutionalism in South Africa from a perspective of democratic accountability. The historical discussion shows that South Africa has always been in a crisis of accountability due to illiberal constitutionalism. Also, the historical analysis shows that Africans in South Africa have always wanted, and taken initiatives, to bring about an accountable government. The thesis further attempts to add to knowledge with the argument that democratic accountability is necessary to contain public mistrust in the government and to bolster confidence in Parliament, the judiciary and Chapter 9 institutions. Without confidence in these institutions of accountability, South Africa is bound to fall into a constitutional crisis, a situation which must be avoided at all costs. Whereas the Constitution is founded on accountable, responsive and open governance, contemporary South Africa faces elevated levels of corruption, maladministration and other manifestations of a lack of accountability. Notwithstanding, the thesis affirms that South Africa has an adequate constitutional and legislative regime for an accountable government. The thesis attempts to prove that South Africa has resilient institutions of accountability and that to successfully hold the political branches of government accountable, institutions such as the Public Protector and the judiciary need more support from citizens. Based on the main findings, the thesis proffers constitutional and legislative amendments to enhance democratic accountability. The proposed constitutional amendments are not made lightly, given that the Constitution is the foundation of constitutionalism and the bedrock of constitutional democracy. Constitutional amendments are proposed because the thesis leads to the inevitable conclusion that one of the main causes of the lack of accountability lies in the Constitution. The thesis proposes the enactment of legislation to strengthen existing institutions of accountability and to create new ones. Some of the recommendations entail the enactment of a statute to regulate and protect intra-party democracy, a reconsideration of electoral legislation to change the electoral system, and the vesting of impeachment of the President in the Constitutional Court. The thesis identifies the need for more research to determine whether South Africa needs a permanent institution to tackle complex issues such as 'state capture' and high-level corruption. Also, the thesis reminds South Africans of their duty to be more constitutionally vigilant against abuses of power. Due to the topicality of the discourse, the thesis suggests further research on other forms of accountability.