Abstract
The primary aim of this piece of article is to identify ways in which the Equal Opportunities Commission of Mauritius and other external oversight institutions in Africa as a whole can be empowered to maintain strong resilience against political interference, manipulation and control in the execution of their functions and day to day operations. In realizing this objective, the research draws inspiration from other external oversight institutions prevalent in South Africa, Kenya, Nigeria, and Sierra Leone in arriving at a model approach that will help to enhance and bolster up the resilience of external oversight institutions in Mauritius and those within the African continent in general against political influence and control.
Introduction
An external oversight framework can be simply defined as an apparatus that is set up to carry out institutionalised scrutiny and monitoring over established institutions, public officials as well as private entities in a country with regards to their conduct, exercise of powers, performance of their duties and use of resources allocated to them.
It is important to emphasize that established institutions in Africa are subjected to various modes of oversight ranging from internal to external as well as advisory. There
are no one size fits all situations. In Sierra Leone for example, external oversight of the police force is regulated by a Police Council while public complaints are largely handled through an internal mechanism known as the Complaints Division and Internal Investigations Department (CDIID). The Country’s Human Right Commission also indirectly exercise external oversight on the police force under its broad functions on promoting and protecting human rights while the nation’s Anti Corruption Commission does exercise oversight on matters of police corruption.
In South Africa, external oversight institutions are guaranteed under chapter 9 of the constitution but oversight on the police service is done through an external body known as the South Africa Independent Complaints Directorate. In Kenya and Nigeria, police oversight is carried out by external bodies known as the Independent Police Oversight Authority and the Police Service Commission respectively.
Taking a cursory look at the situation in Mauritius, one may note the existence of a plethora of external oversight institutions. Prominent among them is the Equal Opportunities Commission which was set up in 2012 to provide oversight on government and private institutions in a bid to deter them from enforcing discriminatory practices and policies within their sphere of influence or domain. Other oversight institutions such as the Police Service Commission, the Judicial and Legal Service Commission as well as a Human Rights Commission have also been set up to provide oversight on the police, judiciary and on human rights in Mauritius respectively.
But notwithstanding their prevalence, it is beyond dispute that external oversight mechanisms in Africa have been largely ineffective in their monitoring and control over established institutions within the state. Some of the reasons for this ineffectiveness could be traced to lack of resources, capacity building, effective powers as well as deep seated corruption and mismanagement. But more significant however, is the issue of political interference, manipulation and control which arguably is perhaps the most crucial factor inhibiting the effective operations of external oversight institutions in Africa. A lot of political interference is evident in the areas of appointment, promotions, control and resource allocation.
How then can external oversight mechanisms develop strong resilience against political interference and control?
In answering this question, I have come up with a model I codenamed the “8 R approach” which if effectively adhered to will not only serve as political buffer for external oversight institutions but will equally inject into such institutions the culture of transparency, integrity and professionalism which will inevitably make for progressive, discipline and corrupt-free external oversight institutions in Africa.
In my view, if an external oversight mechanism is to develop strong resilience against political manipulation and control, it must maintain clear cut lines of recruitment, responsibility, resources, reporting, remuneration, removal as well as remedial powers and redress for compliant.
The “8 R Model” Recommendation
Rooted in legality
In order to discourage political interference and control over external oversight bodies, the first thing that needs to be done is to ensure that an external oversight body is rooted in legality. ie, it is legally established within the framework of the law. Where it is possible, it will be of immense importance to ensure that the oversight body has its roots in the constitution of the country especially so if a country is going through a constitutional review process. This is one key advantage that external oversight mechanisms enjoy in South Africa over many other external oversight bodies in Africa. In Chapter 9 of the South African Constitution, external oversight bodies such as the South African Human Rights Commission, the Equal Opportunities Commission etc are absolutely guaranteed. This is also true for some oversight institutions in Mauritius such as the Judicial and Legal Service Commission and the Police Service Commission which are provided for under the constitution. However, if a country has already adopted its constitution, creating a separate piece of legislation through an Act of parliament in establishing an external oversight institution could as well serve the purpose. This would not only help to guarantee the permanence and independence of such oversight institution but will further prevent an outright closure or suspension of such institutions
by the political class especially when they face tough scrutiny from such oversight institutions. Also, being legally established, the oversight mechanism would in itself be embolden to carry out its duties and responsibilities without timidity knowing fully well that it has the requisite backing of the law. In most cases, political interference becomes easily permissible when external oversight institutions are mere policy initiatives of the ruling government or a creation of a presidential decree. Questions as to their independence will often arise and their lifespan can be short-lived as change in government occurs. This is particularly true of the case of Sierra Leone where critics have expressed fears of the life span of the CDIID as an effective internal oversight mechanism on the police force since it is not a creation of a parliamentary legislation but rather an internal administrative regulatory apparatus. Even though it is commendable that the Equal Opportunities Commission of Mauritius is a creation of an Act of parliament, there is still a dire need for its placement within the constitution so as to fully guarantee its life span and legitimacy.
Recruitment
Secondly, the issue of recruitment of members of staff of an external oversight mechanism must be taken seriously if political interference and control is to be eliminated. In most external oversight mechanisms in Africa, recruitment to top positions is usually done by way of political appointments from the chief executive of the state. In Sierra Leone for example, recruitments to all top positions of external oversight institutions such as the Human Rights Commission, the Political Parties Registration Commission and the Police Council are done by way of presidential appointments. As a matter of fact, the Police Council is comprised of the Vice President of the Republic of Sierra Leone, the Minister of Internal Affairs and the Inspector General of Police all of whom are appointees of the president. In Mauritius also, the Chairperson and the other three members of the Equal Opportunities Commission as well as the chairman and members of the Police Service Commission are solely appointed by the president acting on the advice of the Prime Minister.
This pattern of recruitment raises a lot of questions as to the independence and credibility of these external oversight bodies. Even though some of these appointments
are usually subjected to legislative approval, the damage is still far from being remedied especially when one realizes that the ruling governments in these countries usually wields majority support in Parliament. Rubber stamping the interest of the president therefore becomes easily attainable.
In my view, this mode of recruitment should be replaced by a more open, competitive, democratic and meritorious process. An Independent Recruitment Council (IRC) for external oversight institutions which comprises of representatives from diverse interests in the society should be established to marshal the recruitment process. Advertisements for vacant positions in external oversight mechanisms should be made public by this body and eligible members invited to apply. Upon receipt of applications, the IRC should then shortlist the applicants based on a fair, transparent, equitable and democratic process with due consideration to the issue of gender, race, tribe, colour and ethnicity. The names of the shortlisted candidates must be published in both the print and electronic media for the awareness of the public and a convenient date set out for interviews. The interview process should be conducted in a public arena for all to see and at the end, a vote should be taken by the IRC on all the members interviewed and the names of persons having the majority of votes are then forwarded to the president to select from among them the chairperson of the oversight body. After he has nominated the Chairperson, the president then forwards the name(s) of the person(s) approved by the IRC to the National Assembly for scrutiny. The National Assembly through a tough scrutiny process may either approve or reject any or all of the approved persons. Where Parliament approves, the Speaker of the House will then forward the names of the approved candidates to the president for confirmation. The President by way of notice in the gazette will then confirm the appointment of the chairperson and members of the oversight body. If however the National Assembly rejects the selectees of the IRC and the president, this should then be communicated to the president through the speaker of the House requesting the president to submit fresh selectees from among the shortlisted names forwarded to him by the IRC. In this way, virtual independence and credibility will be absolutely guaranteed in the oversight institution.
It is important for members of an external oversight body to be democratically appointed. This is the case because, where staff members of an external oversight institution are solely appointed by a politician, the oversight body will be inevitably left to accusations of being politically influenced and controlled. It is against this backdrop that Kenya reviewed the powers of the Internal Security Minister through the Independent Police Oversight Authority Act of 2010 estopping him from singlehandedly hiring and firing police oversight board members. Sadly however, appointment to external oversight positions in Sierra Leone and Mauritius still remains a politically motivated decision.
Responsibility
Most external oversight mechanisms in Africa lose their very essence because their jurisdiction and responsibilities are not clearly defined. This makes it easier for manipulations to take place as well as abuse of powers of authority by members of staff working under the influence and dictates of the political class. Defining therefore the purpose and functions of an oversight institution in a simplistic and concise manner is key to not only enhancing its effectiveness and relevance but also to help prevent abuse of power and conflict with other similarly related institutions. It is also important to define the personality and subject matter jurisdiction of the external oversight body so as to give a comprehensive understanding of its purpose and creation. In most cases, where purpose is not clearly defined, abuse from the political class is imminent.
Resources
The funding of an external oversight mechanism is usually a key area of primary influence by the political class over the affairs of these bodies. Adequate resources are essential to the success of an external oversight body especially in relation to its capacity to undertake serious investigations. In Africa, the independence and credibility of oversight bodies have often been compromised due to their high level of dependence on the executive arm of government for financial support. In most circumstances, funds are either determined by the executive or by the very organisations these external bodies are meant to oversee. Little wonder why political manipulations and interference
have always loomed large. The Police Service Commission in Nigeria as well as the Human Rights Commission in Sierra Leone for example has been ineffective due to the fact that budgetary allocations are largely influenced by the executive arm of government. In Mauritius also, budgetary allocations to the Equal Opportunities Commission is remote controlled from the Prime minister’s office.
In my view, this situation should be discouraged. The financial budget of an external oversight mechanism should be sourced from the national budget of the country on an annual basis with due approval by the National Assembly and piloted to a separate account under the auspices of the oversight institution. Preparation of the budget of the external oversight body should be done internally and submitted to the executive arm of government for inclusion in its annual budget preparation and then tabled before parliament for approval. Where the budget estimates prepared by the oversight body is negatively reviewed by the executive, there should be room for such review to be challenged in parliament by the oversight body. Where parliament concludes that the review was unjustifiable, it will then communicate to the executive through the minister of finance to adhere to the initial budget prepared by the external oversight body and transfer such amount to a separate account controlled by the oversight institution. In this way, not only would political interference of the executive be minimized but there would be greater chances of success in terms of results and outputs of such external oversight mechanism.
Reporting
Reporting is one sure way of ensuring transparency and accountability within an oversight body. However, in most external oversight mechanisms in Africa, reporting is exclusively done to the president, closed from public gaze and scrutiny. In Sierra Leone for example, the CDIID reports directly to the Inspector General of police whiles the Human Rights Commission and the Anti- Corruption Commission reports directly to the president. This mode of reporting will inevitably make room for large political influence and control by the executive over such external oversight institutions.
In my view, the reporting process of an external oversight institution should adopt the following model. Firstly, a performance report should be done by the external oversight body every six months on its activities and operations. This report should be submitted to the cabinet secretary for the attention of the executive and later piloted to the National Assembly for their scrutiny. A copy of the performance report should also be made public in the gazette after approval of the Assembly so as to increase awareness of the activities of the oversight body within the public domain. Secondly, the external oversight body should also cause a report to be prepared for each financial year showing its financial statements, a description of its activities as well as its successes and challenges during the year. A copy of the annual report must be submitted to the cabinet secretary at the end of the year so that executive action can be taken in relation to the preparation of the fiscal budget. The Chairman of the external oversight body will then submit the report to the National Assembly for their scrutiny and later publish it through the gazette for the attention of the public. In this way, the tendency of the chief executive of the state monopolizing the reporting process would be highly curtailed.
Remuneration
The remuneration and conditions of service of members of staff of an external oversight body should be favorable and absolutely guaranteed to ensure security of tenure and ultimately minimize the risk for compromise, political interference and opportunities for corruption. Salaries of staff members should not be left to be determined by the political class but rather it should a collective decision of the National Assembly in consultation with the Finance Ministry and must be paid out of the Consolidated Revenue Fund. This kind of set up will highly embolden staff authorities to be fearless and uncompromising in the execution of their functions and programmes. Promotions and awards should also be subjected to an objective test by the National Assembly based on the performance report submitted to it by the external oversight institution and not left to the monopoly of the executive arm of government. A lot of the oversight institutions in Africa have been politically compromised due to poor conditions of service as well as the absence of strong guarantees for security of job tenure.
Removal
Where removal of members of staff of an external oversight mechanism is the sole prerogative of the president as is commonly the case with many external oversight mechanisms in Africa, it is highly unlikely for these institutions to be resilient against political interference and control. As a matter of fact, there would be greater tendency for political compromise, opportunistic behaviors and mediocrity within the operations of the external oversight body. In the Equal Opportunities Commission of Mauritius for example, the president may upon the advice of the prime minister remove any member of the commission without any recourse to due processes. This is also true of Sierra Leone where the president can relieve members of staff of external oversight institutions at will. Without any exaggeration, this outright singular exercise of power can be quite worrying and may even create arbitrariness and abuse of authority with the state. In as much as there should always be room for sudden removal / dismissal, it is vital to emphasize that such actions must be subjected to the due process of the law.
My suggestion therefore in this regard would be thus. Where a person is desirous of the removal of say the chairperson or any member of an oversight authority before the expiration of their term; such person should in the first place present a petition to the IRC (the recruiting body) stating out clearly why he/she thinks removal is necessary. This petition would then be objectively considered by the IRC and if two thirds of its members agree, they would then recommend to the National Assembly the removal from office of the member(s) complained of. The National Assembly will consider the petition and where it is satisfied with the reasons for dismissal, it will then forward its approved decision to the president who will inform the Chief Justice to set up a tribunal comprising of at least four superior court judges of high standing and reputation to hold a hearing on the matter. This tribunal must be held publicly and the aggrieved party (member of staff to be dismissed) accorded the opportunity to put across his/her defence. The final decisions of the tribunal are binding and should be communicated to the president who will then act accordingly in line with such recommendations. Apparently however, where a staff member of an oversight institution is being investigated, such member of staff should be suspended from office with half pay until
final determination on the matter is made. This model, if followed, would help greatly in enhancing the resilience of external oversight bodies against political interference and arbitrary dismissal.
Redress/ Remedial Powers
For an oversight authority to be taken seriously, it must be imbued with enormous remedial and redressive powers. It must have powers not only to investigate but also to make recommendations, order financial compensations as well as removal from office. Where its recommendations are not adhered to, the external oversight body should be accorded a right of standing before the courts to bring a case of contempt and secure enforcement of its recommendations. Unfortunately however, many of the external oversight bodies in Sierra Leone and Mauritius have been labeled as toothless bulldogs since they lack the above remedial and redressive powers. Little wonder their ineffectiveness. A strong remedial power in an oversight institution will definitely serve as a check and red light to political interference and control.
Conclusion
In sum, notwithstanding the above points raised, it is important to admit that establishing a politically-free and independent external oversight body is not something that can be achieved overnight. This is the case because man by nature is a political being imbued with lots of stereotypes and prejudices which often interplay with his office work and environment. Creating therefore the needed public awareness and work ethics that may help in changing attitudes and behaviors within external oversight institutions, is key to maximizing the strongest buffer and resilience against political interference and control.
RASHID DUMBUYA is an International Human Rights Lawyer and a practicing Barrister and Solicitor from the Republic of Sierra Leone. Rashid holds a Bachelor of Arts Degree as well as a Bachelor of Laws Degree with honors from Fourah Bay College University of Sierra Leone and has worked at the UN Special Court for Sierra Leone and the UNDP Access to Justice Office in Freetown. In April 2013, Rashid represented the African continent at the UN/EU sponsored Global Classroom discussions on the Millennium Development Goals and the Post 2015 Agenda held in Venice, Italy where he presented a report on the successes and challenges of the health related MDG’s in Africa and the way forward . Rashid has also served as Lecturer of Corporate law at the Milton Margai College of Education in
Freetown , Legal and human rights Officer for Every Child Matters- Sierra Leone, Head of legal and compliance, United Bank for Africa (SL), Legal Aid Volunteer of Prisons Watch Sierra Leone and as a Researcher at the Equal Opportunities Commission in Mauritius. He is currently an LLM Candidate at the Center for Human Rights, University of Pretoria, South Africa.