Human rights conference highlights urgent need for proactive accountability in governance practices

“The core message of my address to you this morning is that there can be no transformation without accountability… I suggest to you that we have moved from the soft notions of accountability that emerged in the halcyon days of the late ’90s constitutionalism to a sharper articulation of what accountability requires, and from whom.”

These were the words of Advocate Adila Hassim, senior counsel at Thulamela Chambers and a renowned human rights lawyer, who was speaking at the Human Rights and Constitutional Accountability Conference, hosted by the Stellenbosch University Law Faculty on 28 and 29 November. The event marked 30 years of constitutional democracy in South Africa.

Hassim advocated for strengthening the call for individual accountability of public office bearers. She noted that the power assigned to the government didn’t belong to the individuals who occupied positions, but rather resided in the state for the common good. 

“For accountability to be truly effective, it must be felt at an individual level… Individual accountability can range from remorse to criminal conviction – what is appropriate will depend on context. At times, an apology or a confession goes a long way in recognising the harm done and effecting course correction. Sometimes, sorry is not enough,” she said.

Hassim referred to the court processes surrounding the Life Esidimeni tragedy as an example of seeking accountability from individual public office bearers. 

This tragedy saw the deaths of 144 mental healthcare users after they were moved from a highly specialised, long-term psychiatric care hospital to an ill-equipped and unlicensed NGOs and community care facilities. The Gauteng Department of Health’s decision to close Life Esidimeni in 2015 went ahead despite strong opposition from experts and civil society organisations. 

Hassim was lead counsel of the Life Esidimeni arbitration and inquest, which sought justice for the mental healthcare users and families affected by the closure. She described the incident as “one of the lowest moments in the 30 years of our Constitution”.

“In September 2019, the acting Director of Public Prosecutions decided that a formal inquest into all the deaths be held in the North Gauteng High Court,” Hassim said, adding that the process ran for 130 court days over two years and involved 40 witnesses.

In July 2024, Judge Mmonoa Teffo ruled that the  former Gauteng health MEC, Qedani Mahlangu, and former director of mental health in Gauteng, Dr Makgabo Manamela, could be found criminally responsible for the deaths of nine Life Esidimeni patients. While it is not a definitive finding of criminal accountability, the docket is now with the National Prosecuting Authority for further investigation.

Read more: Life Esidimeni families urge NPA to prioritise prosecutions of Mahlangu and Manamela

Hassim spoke of section 195 of the Constitution, which states that public administration must be governed by the democratic values and principles enshrined in the Constitution, including transparency and accountability. The section has been directly invoked in at least 120 judgments between the high court and the Constitutional Court, she noted.

“I suggest to you that the legal culture of accountability within its conservative bounds has gone further than we would have expected 30 years ago, but in almost inverse proportion, political culture has failed to live up to a constitutionalised code of political governance,” Hassim said.

“The repeated invocation of section 195 by the courts is a way of communicating to the other levers of state to step up their implementation of the principles contained in that provision.”

Culture of accountability

Professor Sandra Liebenberg says community organisations must be equipped so they are better able to hold those in government accountable. (Photo: Jan Theron)