Light Continent: How African courts are redefining the contours of democracy and accountability
by Jason Lakin, Senior Research Fellow, IBP— Nov 24, 2020
On October 26, 2020, Ghanaian civil society organizations took the government to court. They argued that the president had illegally interfered with the work of the Auditor General (AG) – who is tasked with reporting on the government’s operations. As the Auditor was finalizing his 2019 report a few months prior, the president essentially forced him to take accumulated leave, and appointed an “acting” Auditor General in his place. Activists argued that this contravened Ghana’s constitution, which, like many other constitutions, gives independent constitutional offices broad autonomy to carry out their functions. The government argued, by contrast, that the constitution (in article 297) allows anyone who appoints a public officer to also “exercise disciplinary control” over that officer.
This case has of course not been decided yet, but it affords an opportunity to reflect on the extent to which African advocates and courts have helped to reshape the contours of what we mean by democratic, accountable government in recent years. This dispute, which has echoes of a similar conflict over Kenya’s Public Audit Bill in 2014 (when the Kenyan Auditor General argued for independence over human resource management), entails a critical decision about the extent to which formal oversight bodies can act independently. The Ghanaian case will help to set precedence for the way in which we currently understand the working of democratic institutions, the separation of powers and the rule of law.
Groundbreaking examples across Africa
The case draws on and reminds us of another important precedent from Ghana, Occupy Ghana v. Attorney General, decided in 2017. This case concerned the powers of the Auditor General to disallow illegal expenditures and surcharge officials for their actions (or lack of action) in causing public revenue losses – powers which existed on paper but were seldom used. The AG at the time argued that the office’s responsibility was met “simply by auditing and pointing out financial irregularities in the accounts of a public entity” and did not require him to impose surcharges.
Remarkably, the case sought to force the AG to use these powers, arguing that systematic failure to do so was a violation of the constitution. Perhaps even more remarkably, the courts agreed. Arguing that “the tendency where public accounts are considered as a fattened cow to be milked by all and sundry must stop,” the courts ordered the AG to surcharge officers found to have condoned illegal expenditure, and to take steps to ensure that these surcharges were paid. This novel case tested the boundaries of the meaning of accountability in modern states by requiring constitutional offices to rise to their oversight responsibilities. Its singular importance justifies its inclusion in the International Budget Partnership’s (IBP) recent global assessment of oversight systems, published in partnership with the INTOSAI Development Initiative.
Building space for public participation in tax and budget decisions
Groundbreaking cases from Africa related to the nature of modern democracy and accountability are not limited to issues surrounding auditors. For example, the South African courts have blazed new trails in defining public participation. In 2007, the courts elaborated on a theory of the state’s “duty to facilitate public participation” in Doctors for Life International v Speaker of the National Assembly and Others, claiming inadequate participation in the passage of health legislation. A critical aspect of this decision was the burden it placed on the government to provide citizens not only with opportunities to participate, but with the means, including the capacity (developed through education) to participate meaningfully. Attention was particularly drawn to the need to include marginalized voices in legislative decisions that affect them and the courts found that speedy resolution of policy issues was insufficient on its own to justify curtailing participation.
As I have noted in this space before, Kenyan courts, drawing on local and international jurisprudence, have breathed further life into legal requirements for public participation. They have in part drawn on South African cases like Doctors for Life when tackling participation in public finance matters. For example, in 2013, the courts found that the enactment of a county tax law (the Kiambu County Finance Act) was unconstitutional, as the county had failed to undertake meaningful public participation prior to its enactment. In this case, the court held that the County Assembly had a duty to “exhort its constituents to participate in the process of the enactment of such legislation by making use of as many fora as possible such as churches, mosques, temples, public barazas national and vernacular radio broadcasting stations.”
The South African and Kenyan courts’ interpretation of the meaning of participation—that the people’s representatives have a duty to “exhort” them to participate in tax legislation, among other policy areas—is quite novel, and certainly at odds with a more traditional pluralist view, which assumes that the problem of democracy is how legislators can manage the contradictory pressures emanating from participation. As in South Africa, these cases emphasize the state’s special duty to encourage participation for a broader public that has traditionally been excluded from decision-making.
The Kenyan courts have gone further still in permitting public interest legislation that has overturned tax policies. I have previously discussed Tax Justice Network Africa’s (TJNA) case against the Double Taxation Agreement with Mauritius in this space. That case was decided on narrow grounds that did not substantially expand the meaning of modern democracy, but it did show that civil society could establish standing in tax policy cases. This opened the door to more substantive petitions, including a more recent lawsuit by TJNA against the Government of Kenya over ten tax treaties on both procedural and substantive grounds. A 2020 case in Zambia confirms that African revenue authorities are increasingly able to confront multinational corporations over tax evasion related to transfer pricing; thus the courts are not only increasing the power of ordinary citizen influence over policy, they are also limiting the extraordinary power of corporate interests.
Returning to Kenya, in 2017, activists successfully sued the government over an increase in excise tax on beverages. The Kenyan courts invalidated the tax increase, holding that there was inadequate public participation to inform it. They specifically found that “[t]axation or any legislation or policy that creates a financial burden upon citizens must as of necessity be subjected to adequate public participation wide enough to cover a reasonably high percentage of population in the country.” It is not enough to “to rely on attendance sheets for two meetings attended by a few persons with no supporting minutes” held in the capital, on an issue affecting most Kenyans.
This establishes a fairly high bar for what participation requires. Moreover, the same case found that, in the case of water taxation, the government had a constitutional obligation to justify this tax as reasonable, taking into account the potential impact on the constitutional right to both water and property. The government, should it wish to reintroduce this tax with proper participation, would still need to provide this justification. The South African, Zambian and Kenyan cases discussed here demonstrate that traditional areas of executive privilege around treaty-making and taxation are not immune from modern demands for greater public participation in democratic settings.
Redefining accountable democratic governance
Taken together, this emerging body of law across Africa has altered our understanding of what accountable democratic government means. African courts have pushed the boundaries of our understanding of oversight and participation, normalizing participatory democracy above and beyond representative democracy, and demanding that public officials clear a higher bar in making decisions without public oversight. There is of course much more work to be done, but this is a narrative that deserves wider recognition.