Constitutionalisation of public service and administration in Africa

Author: Paul Mudau

Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa

‘Modern African constitutions’ produced by the recent wave of constitutional reforms that swept across Africa generally transpired in the constitutionalisation of public service and administration. Public administration is any institution with operations aimed at applying, enforcing or fulfilling public policies and programmes or undertaking public service duties as well as regulating the conduct of public servants. Public service is any service or public-interest activity provided by government under the authority of the relevant administration.

Heightened by national legislation, the quest to promote democracy, good governance, human rights and development in the government structures emerged to be inevitable. By today, most countries have constitutions that sets up their governments’ organisations, structures, managements, regulations, duties, disciplines and defines the relationships between public entities, the interactions between these entities and individuals seeking public service, more particularly, making provision for the manner in which different divisions of government interact and function together. More vitally, these constitutions are cognisant of the need to promote an administrative culture that is based on the respect for the rights of the user; quality and innovative service delivery; and active and effective participation of citizens and users of public services in public administration processes. Other constitutions further encourage professional ethics, equitable access to services, optimum conditions of equity and efficiency, transparency, accountability, good human-resource management practices and compliance with the laws governing the affairs of public service and administration. In this regard, Bergling et al, argues as follows:

Constitutional reform, or restoring constitutionalism as the governing paradigm, may be the most fundamental example of legalisation. Constitutionalism here is understood both as an outline of the offices of the state and their functions, and a stipulation of the normative limits of their power and a guarantee of the rights of individuals.

The place of constitutional law in public administration

Public administration is an academic discipline and a field of broad scope that is geared toward the understanding of policy and its implementation in regard to the government and public sector. It has the fundamental goal of advancing management and policies to improve the functioning, as well as defining the role of government. The intersection between the constitutional law and public administration is the fundamental bond for the government and how its public administrators would act in relation to individual liberties. Constitutional law primarily affects public administration in the sense that it provides for the constitutional duties of public administration, sets out the code of conduct and general restrictions of public officials as it prevents the encroachment of human rights protected by the constitution, and set the basic framework for the social status of the public servants and other officials involved in public administration and guarantees their rights.

According to Bergling et al, the framework for rule of law in public administration would entail five basic ‘orientations’:

1. constitutionality and legality in public administration – There should be clear regulation in the law of the organisation of the administration, and with concrete remedies (courts with appropriate jurisdiction) to combat illegal acts by administrative bodies, etc.
2. citizens and the public administration – There should be clear administrative procedures, based on rule of law principles and guarantees (the right to be regarded as a party in the procedure, to be heard, to appeal, to access information, etc.).
3. staff management – There should be laws regulating recruitment, career structure, discipline, etc. of public officials.
4. service or utilities delivery – The relationship between the public and private sectors should be clearly defined in law; there should be rules governing fair competition, transparency and dispute resolution.
5. law and governance – There should be agreement and decision on the appropriate governance pattern (law, soft law, contracts, etc.) for intergovernmental relations and relations with non-state entities.

Public service and administration in African constitutions

A number of constitutions in Africa recognises public services and administrations in vastly varying degrees. Some, apart from mentioning public services and/or administrations in various levels of government, organs of state and public enterprises, contain a list of the basic values and principles governing the public service and administration. Others require national legislation to do so, or succinctly provide such values and principles, or merely provide for a certain objective, principle or function or entity in the civil service. Among them, are the constitutions of South Africa (ch 10), Zimbabwe (ch 9), Uganda (ch 10), Namibia (part 12, ch 1), Botswana (ch 7), Lesotho (ch 13), Eswatini (10), Malawi (ch 20), Mozambique (title 12, ch 1), Zambia (part 13), Democratic Republic of Congo (sec 7), Angola (title 5, ch 1), Ghana (ch 14), Nigeria (ss 169-173, 206-209), Kenya (ch 13), The Gambia (ch 11), South Sudan (part 9, ch 1), Somalia (ch 11), Sierra Leona (ch 10), Morocco (arts 154-160), Mauritius (ch 8), Guinea (art 23), Seychelles (ch 11), Sao Tome and Principe (art 113), Cape Verde (title 7), Burundi (art 71), Côte d’Ivoire (arts 41-42), and Eritrea (art 9).

Continental response: African Charter on Values and Principles of Public Service and Administration

At continental level, on 31 January 2011, the African Union (AU) adopted the African Charter on Values and Principles of Public Service and Administration (the Charter). The Charter entered into force on 23 July 2016. Thus far, among the fifty-five (55) member states of the AU, only nineteen (19) have ratified the Charter. The Charter is the first legally binding and clear-cut continental legal framework that serves as catalyst for the public service and administration reform agenda on the continent. Taking this into account over and above the sweeping constitutionalisation of its similar values and/or principles, this offers hope in addressing the frailties of the African public service and administration. Among others, the principles of the Charter include: equal use of public service and administration; impartiality, fairness and due process in the delivery of public services; continuity of public services under all circumstances; adaptability of public services to the needs of users; professionalism and ethics in public service and administration; and effective, efficient and responsible use of resources. Hence, public services have to be delivered in accordance with the existing national laws, regulations and policies.

In the process, the public service and administration and public servants have to respect the human rights, dignity and integrity of all users of public service. By situating public administration within a rule of law framework, the ‘users’ of the system become rights-holders, capable of legally claiming services of a certain quality and holding the agents of the state accountable. Mostly, constitutional law dimensions in public administration reform efforts is often overlooked. Article 23(1) of the Charter stipulates that, while implementing the objectives, applying the principles and respecting the commitments enshrined in the Charter, individual State Parties have to adopt legislative, executive and administrative measures to align their national laws and regulations with this Charter. It further requires individual State Parties to integrate the commitments, values and principles of the Charter in national policies and strategies.

Drawbacks of public service and administration in Africa: constitutions without constitutionalism

Nevertheless, in spite of the constitutionalisation of public service and/or administration and the coming into force of the Charter, poor service delivery, lack of professionalism and public service ethics and rampant bureaucratic corruption are deeply entrenched within the African public services and administrations. A major point of concern arises from the fact that the constitutionalised values, principles, organisations, structures, managements, regulations, duties and disciplines of public service and administration are dented by the lack of rule of law and the lack of effective implementation of the constitutions. Seemingly, the intertwined relationship between public administration, constitutional law and the rights of users of public service are disconnected in reality. Apart from the fact that constitutions may have ushered in the provision of public service and administration, non-compliance with the legislative, executive and administrative instruments aimed at giving effect to constitutional imperatives amounts to partial or wholly lack of constitutionalism.

It is worth noting that section 195(1) of the Constitution of South Africa, 1996, richly provides for the basic values and principles governing public administration which bear a striking resemblance to the various values and principles that are enshrined in the Charter. In addition, South Africa enacted the Public Administration Management Act 11 of 2014 in order to give effect to the values and principles referred to in section 195(1) of the Constitution. Fombad asserts that ‘the quality of the South African Constitution, enhanced by the jurisprudence from its Constitutional Court provides better material adapted to the African condition for African constitutionalists to learn from…’. Needless to mention, the basic values and principles governing public administration contained in section 194 of the Constitution of Zimbabwe of 2013 is a copycat of section 195 of South Africa’s Constitution. Yet, despite these massive correspondence between the provisions of the constitutions of South Africa and Zimbabwe and the Charter, not much practical transformation has been witnessed in the public administration and service of these countries. In order words, the actual implementation of the Charter, constitutions, laws, policies and strategies becomes a yardstick for assessing the nature of constitutionality and legality of public service and administration processes. The presence of the common values, principles, organisation, structures, management, regulation, duties and discipline of public service and administration in a constitution or national laws and policies (as required by the constitution) does not automatically guarantee the existence of constitutionalism. Despite having an impressive constitutional framework pertinent to public service and administration, the South African experience is marred by detrimental revelations of mal-administration, corruption, bad governance, unethical conduct and poor performance, lack of service delivery and far-reaching implications of State Capture.

Conclusion

The partial or wholly absence of constitutionalism in public administration processes contributes to the challenges faced by many African states. They continue to languish from mal-administration, corruption, bad governance, unethical conduct and poor performance, lack of service delivery and State capture. These challenges aggravate poverty and underdevelopment on the continent. It is impractical to promote and attain democracy, good governance, human rights and development if the relevant African public entities do not effectively implement the constitutions, national laws, public policies and programmes or undertake public service duties with the objective to meet the optimum conditions of equity and efficiency. Pertinent to the public service and administration, the failure to uphold the imperatives envisaged by the constitution defeats the purpose for the constitutionalisation of their organisations, structures, managements, regulations, duties and disciplines.

Except for reliance in constitutionalising the public service and administration, it is desirable that AU member states accede and/or ratify the Charter. The Charter’s effective application and implementation will enhance efforts to promote an administrative culture that is based on the respect for the rights of the user; quality and innovative service delivery; and active and effective participation of citizens and users of public services in public administration processes. As a result, increasing the likelihood to best expedite the promotion and attainment of democracy, good governance, human rights and development in Africa.

An accountable and effective public service and administration is based on a functional legal framework, efficient regulatory structures, and transparent systems for financial and legal accountability.  In this regard, an operational public entity is fixed, among others, on impartiality, fairness and due process in the delivery of public services; continuity of public services under all circumstances; adaptability of public services to the needs of users; effective, efficient and responsible use of resources. All these public service activities should take place in accordance to the Charter, constitutions and the existing national laws, regulations, policies and strategies.

The constitutional ethos of the relations between public servants and users of public services should be based on professional merit and respect for human rights.  Accordingly, from a human rights perspective, the laws that regulate public administration should affirm the rights of users of public services and impose a corresponding obligation on public servants to respect such rights.  In the same vein, the regulations should also provide for the rights of public servants.

About the Author

Paul Mudau is a Senior Lecturer in the Department of Public, Constitutional and International Law at the University of South Africa. He is currently a PhD Candidate in the School of Law at the University of the Witwatersrand. He holds an LLB from the University of Limpopo, an LLM in Human Rights and Democratisation in Africa from the University of Pretoria, and an LLM in Law, State and Multilevel Government from the University of the Western Cape. His research interests include local government law, human rights, constitutionalism, democracy and public administration.