The final stage of the review was characterized by a more uniform and systemic application of the guidelines and procedures. This seems to have emerged as a result of informal agreements, reached among members of the council, to resort to the APR guidelines as the basis for deliberations at the level of the National Governing Council.
In this phase, the handling of proposals for the inclusion of items not specifically captured in the APR questionnaire became subject to complete standardization. This was largely the result of an increase in the demands of civil society groups to have submissions included in the national programme of action. Within the context of its visit, the country review mission engaged with stakeholders, and the final approval of the review report of South Africa by the APR Forum and Panel, in conjunction with the National Governing Council, developed a set of guidelines that served as the point of reference for the conduct of participants (APR Guidelines 2003). Through a communiqué issued at the 4th summit of the Heads of State Committee participating in the APRM, the Forum directed the APR Panel and the Secretariat to monitor and report on the implementation of the programme of action of members undergoing the review process (Communiqués of 4th summit of APR Forum, para 15, January 2006). This communiqué largely
addressed issues of monitoring programmes of action which are, in many ways, the engine of the review process in terms of its vision to enhance governance practices in participating countries. Against this background, the Forum agreed that all issues related to the implementation of the
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review process be addressed in accordance with the procedures and regulations of the APRM, as outlined in the APRM base documents.
The adoption of the communiqué of the 4th summit opened up an opportunity for deliberation on the guidelines of the APR, and the possibility of making use of them in regulating the behavior of decision makers, in order to overcome challenges in the decision-making process of the review. However, the directives issued by the Forum at the 4th summit of HSGC of the APRM did little to provide a robust common ground for participants in the review process to come to an agreement. In a subsequent communiqué, the Forum requested all participating countries to make the process widely participatory for all interested actors, especially civil society groups. This process marked a reversal of some magnitude, so that members of the committee of Heads of State and Government now expressed concerns over the tendency of country advance missions and support missions to spend more time with civil society groups and non-governmental actors, to the detriment of the government under review (Communique of Sixth summit of APR Forum, para 12, 2007).
It can be seen that the Forum has latterly underscored the participatory and all-inclusive character of the APRM process, and recommended that stakeholders be encouraged to participate, deepening the transparency of the decision-making process (Para. 12 of communiqué). This innovation effectively gives individuals and groups the opportunity to make proposals on issues of concern that are deemed important to the policy areas of the four thematic areas of the review process. However, such proposals are still subject to a consensus among the country review mission. Although this appears procedurally more progressive, it still presents inherent challenges. On the positive side, individuals and civil society groups with expertise in the issue areas can directly access and petition any of the bodies in the governance structure of the review process. By doing so, the process is open to extra opportunity structures that can hold decision makers accountable. On the other hand, its performance presents practical challenges in situations where petitions are ignored at the country level. This is particularly the case in situations where the issues of concern are perceived to have reputational effects on the State under review. In such cases, disagreements could, at the least, lead to a decision blockage which could paralyze the entire decision system.
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The directives of the Heads of State Committee, as put forward in the communiqués (4th and 6th
communiqué of the HSGC of the APRM), and the presence of the guidelines seem to have significant consequences in the operation of the review process at this stage. Since the adoption of the communiqués, the South African review process appears to have been more receptive to the adoption of proposals by civil society groups to the national programme of action at the level of the review mission. At the country level, however, attempts to get individual issues listed have proved frustrating, as seen in the ODAC case. In separate national consultative conferences organized by the national governing council, ODAC attempted unsuccessfully, on both occasions, to get issues related to the right to information listed in the thematic areas of corporate governance, economic governance and management, and political governance and democracy (Hutchings et al 2008).
In July, 2006 the country review mission visited South Africa. The purpose of the visit was to hold structured formal engagements with a cross-section of groups and actors relevant to the review process, in order to validate information that had been received. To this end, efforts were made by the review team to reach out to a variety of sources outside the formal programme schedule (Herbert and Gruzd, 2008 264). At this point of the process, the conflicts that had questioned the independence of the council and the definition of the structural components of the internal process were widely absent. The review team was able, more or less, to play the role of an arbiter between the more radical civil society groups and representatives of government on the council. As a result of this practical outcome, some semblance of stability seems to have emerged within the decision process of the review mechanism.
Issues of concern to the media, and to some representatives within the National Governing Council, have focused on the omission in the draft country review report of discussions on ‘floor crossing’, the ‘Oilgate’ scandal and threats to judicial independence. While strict advocates of a detailed process pressed for further condemnation of these practices in the report, it appears that government was uncomfortable with the strong wording of the reports on these issues. During the 2nd May meeting of the National Governing Council, it is reported that some government
officials had expressed misgivings at the tone of the draft report and requested the research agency tone down the language used to describe the situation (Minutes of 2 May 2006 National Governing Council Meeting).
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The second National Consultative conference which took place on the 4th to 5th May appears to have been hurriedly encouraged to validate the draft reports, which were seen to have had some pages taken out at the last minute.5 Beside a last-minute revision of the contents of the report, as
suspected by some participants, a further doubt was raised by the fact that the research agencies had not collected further and better particulars on the submissions that were made by individuals through the provincial councils that it had used. As the research agencies had relied heavily on the information that was provided by the provincial council, it was not possible to validate or cross check the responses that were provided to the APR questionnaire which served as the basis for formulating the self-assessment report.
Notwithstanding these doubts, the Kliptown conference of 2 May was well attended by over 1,700 participants (Herbert and Gruzd, 2008:264). It was generally agreed that the self- assessment report and the national programme of action had succeeded in reflecting the concerns and issues raised. Though some sections of the participants still held the view that portions of the report were edited, an agreement was reached to present it to the APR Panel for scrutiny.
The country review team worked on the country review report of South Africa, from August to December, 2006. The report that was produced contained 182 recommendations in all four areas of the review. Most of the issues that were thought to have been watered down as a result of the editing of the self-assessment report had found their way back into the report.6 Nevertheless, a
close look at the programme of action, and the responses that were provided by government to the comments of the review team, reveals that the government, to a large extent, had ignored and failed to respond to some of the condemnations directly. Admittedly, it was the case that government had partially responded to some of the recommendations, for instance, when issues of xenophobia and crime statistics were contested at the presentation of the Country Review Report at the summit of the APR Forum (Communique of 7th Summit of APR Forum, page 3).
The review of South Africa, held at the margins of the AU conference, served as an opportunity to assess the acceptability of the report, considering that most civil society and government actors had expressed their concerns about the process that culminated in the report. With the July
5 Personal Interview, Gruzd Steven, South African Institute of International Affairs, Johannesburg South Africa, 28
July 2015
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2007 Summit of the APR Forum, South Africa’s case was reviewed by the Forum. Thereafter in October 2007, the Country Review Report and the National Programme of Action was publicly released.
This brief phase of the South African review process was met with media criticism around the lack of transparency leading to the final country review report (Pogue 2010: 154). The central basis for this criticism was more related to a conflict between the National Governing Council of South African, on the one hand, and civil society groups that were desirous of engaging the review process as a means of advancing and advocating their interests, but had been sidelined in the process.
Another conflict, in essence, had to do with the APR Panel and the National Governing Council. It appears the Panel had reservations over the lack of any comprehensive response to the programme of action as outlined by the government of South Africa to address the challenges identified in the country self-assessment report (Herbert and Gruzd 2008: 307). As a result, the desire of the National Governing Council to go through the process as quickly as possible was seen a dereliction of its duty to meet the requirements for a comprehensive process with broad base engagement.
4.6. Conclusion
The governance structure of the South African Review process provides an example of an institutionalized environment that incorporates incentives for making decisions that are informed by established guidelines and norms. The APR Forum transfers it power to the APR Panel over the making the day-to-day decisions of the review mechanism, which are then implemented at the country level by the National Governing Council. As a result, a division of labour is established in the exercise of the functions that are assigned to each of the committees in the decision process. This leads to specialization among the various decision bodies, resulting in implications for the decisions made. As a consequence each of the bodies in the decision process is faced with a specific opportunity structure. While the APR Forum restricts itself to making decisions of a political nature and adopts decisions that guide the conduct of the review process,
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other bodies are faced with streams of decision proposals and have to utilize expert knowledge to arrive at a resolution of individual cases. Even in the particular case of South Africa, where the National Governing Council operates under a government ministry, the system has been able to push the powerful government representatives in the council towards the acceptance of decisions based on standards that were agreed upon to guide the review process.
As theoretically forecast, the South African review process operates empirically in the light of rule-based decision making, even though powerful actors exhibit interests that are averse to the guidelines of the review process. As a specific case, the review process of South Africa shows adherence to the guiding principles of the review process, notwithstanding the initial attempts by the Focal Point to pursue the interest of government. The contention of this dissertation is that this tendency can systematically be traced to the separation of rule-making functions and norm implementation between the continental APR structures and the national level structures. Even in the face of ambiguous guidelines and imprecise country guidelines, the decision making system has consistently resorted to a practice that had previously existed in other review processes, and served as a yard stick. In summary, in the South African case, during the review process the APR Forum concentrated its operations on formulating rules at the political level, while the National Governing Council, in conjunction with other sub-committees at the national level, concentrated on the application of rules and guidelines. As a consequence, different tasks were delegated to other bodies that sought and succeeded in producing the most appropriate decisions.
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