Following the intervention of the country support team which achieved clarification of the issues that had stalled the review process, the system appears to have resorted to informal means, involving consultation with a range of other stakeholders to reach consensus on various issues in the decision-making process. At this time, the council did not adopt any specific decision criteria to guide their conduct, but, by and large, the council resorted to informal means to reach deep agreements on any contentious motions that were put forward.
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From December 2005 to June 2006, a number of proposals were made, from all sides, on issues pertaining to the process of research and the editing of the self-assessment report. To this end, the council in November 2005 appointed a research subcommittee to oversee the compilation of the self-assessment report. According to Herbert and Gruzd (2008), the resolve of the council to involve technical research agencies was founded in the desire to ensure quality assurance, providing a means of preventing defects and maintaining the quality of the research information needed to make informed decisions at each stage of the process. In this regard, a robust quality assurance framework within the decision process was deemed necessary to prevent unnecessary problems that had the potential to affect the review process. The credibility and quality of information provided at the country level was seen as central to the outcome of decisions in the final review reports, necessitating the highest control measures to provide the means to arriving at appropriate information for each policy issue.
Effective administrative and procedural activities were seen to be needed to be designed into the quality system, to enable requirements for the most appropriate decisions in the self-assessment report. There arose a requirement to assign the tasks of creating systematic measurements, and of the monitoring of the review process, to a specific research entity. This would enable the system to create a feedback loop to assist in the prevention of errors at every stage of the process. In the presence of an effective quality assurance system, participants in a decision-making process were expected to be pushed to abandon their case-specific parochial interests, since the extra measures put in place are likely to identify inappropriate, less informative proposals. Though the appointment of the research institutes was accompanied with some difficulties, as detailed below, it played an important role at the country level process. The involvement of the Technical Research Institutes addressed the need to ensure the credibility of the process, and to strengthen its immunity to the whims and caprices of participants who may intend to pursue their parochial interest.
In order to make them relevant in this respect, two important arrangements were put in place by the National Governing Council in appointing the Technical Support Agencies (TSAs) engaged in the South African review process. This process had unintended consequences in inducing further and extra incentives for making decisions that represent the collective goals of member states participating in the review process. Firstly, in a move towards creating extra accountability
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and monitoring mechanisms in the process, the research subcommittee (of the national governing council) invited over 200 institutions to apply as voluntary research partners. The aim in partnering these organizations was to validate the work of the research institutes that were contracted to compile the self-assessment report for each of the four thematic areas. This innovation was envisaged to be able to contribute to a fair representation of the inputs of all actors in the review process, and give systematic access to minority groups wishing to have their concerns heard. Though geared towards pushing the various research institutes to be accountable for the decisions they made in the compilation of the reports, this aspect was not properly implemented. Fifteen such bodies were accredited, but never met to review the technical reports (Herbert and Gruzd, 2008: 262). These difficulties were attributed partly to inadequate resources and the limited timeframe to complete the self-assessment process.
Instead the services of two quality assurance agencies were engaged to assess the quality of work that was produced by the technical support agencies. The Human Sciences Research Council (HSRC) and the office of the Auditor-General were given responsibility for evaluating the work of the four technical agencies that compiled the reports. In each case this provided the technical agencies with incentives to make decisions that generally reflect the goals and objectives of the review process. The knowledge that the contents of their reports would be scrutinized by other agencies, with equal expertise in the issues of relevance, provided incentives for the technical agencies to produce the most problem-adequate decisions. Even if this incentive was absent, the research agencies had their reputation at stake. Since their competence in the issues of concern to the review process was thereby recognized, they generally had an incentive to produce the most reasoned decisions in the best interest of the objectives of the review process. To this end, it can be seen that the onus of producing reports that reflect the intentions of the review mechanism became institutionalised, and created the conditions for producing outcomes that were in the best interest of all actors in the process.
A second important arrangement that preceded the appointment of the technical agencies was a call for tenders for their engagement in each of the four areas of the review process. The main task under consideration was the production of a draft report that reflected the submissions and criticisms of all comments received. It was the responsibility of these agencies to test the findings of the report by organizing seminars for experts in the particular thematic area, and then
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produce a final technical draft, with a programme of action for each of the areas based upon these findings.
The question of the relevance of the autonomy of the research agencies, spearheading the review process in South Africa, is theoretically significant. In this particular case, the presence of the research agencies seems to serve to reduce doubts about the potential of the government led National Governing Council to interfere with the decision making process. Research agencies, in the institutional framework of the review process, are expected to contribute to decisions based on their expertise. They are guided into making recommendations that represent the criteria spelt out in the guidelines. As a result, the decision rationale of the technical research agencies is akin to that in trustee-agent relations, where decisions are made to reflect some previously established criteria that are defined by the principal and largely representing their long-term interests (Gehring and Plocher, 2009: 688). This externally given criteria, if they exist, serve as an intervening force in the principal-agent constellation to preserve the autonomy of the agent in its day-to-day operations.
The contestations that characterized the initial operations of the South Africa review process appeared to have become stabilized, to a large degree, with most contentious issues being mutually agreed upon by resorting to the guidelines. An issue of importance was the attempt by the Open Democracy Advice Centre (ODAC) to get two specific issues, of whistleblowering and freedom to information, addressed in the APR questionnaire (Hutchings et al 2008). It is clear from the APRM questionnaire that issues related to the access to information and the protection of whistleblowers is missing from the standardized questionnaire sent out to each participating country in the review process. In its claim to get these issues incorporated as a key component of the South African review process, ODAC made appeals to the guidelines of the review process which are explicit on the need to make adaptations to the questionnaire in the light of the prevailing circumstance of the country under review. According to ODAC’s argument, a true and proper interpretation of paragraph 17 of the APRM base document and paragraph 11 of the Guidelines would make provision for the flexibility of the contents of the questionnaire and allow countries under a review to take into consideration their own peculiarities (Hutchings et al 2008: 5).
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Based on these provisions in the guidelines, ODAC made proposals specifically related to access to information and whistleblowers, demanding that these issues be included in the questionnaire in the South African review process. In the first national consultative conference held on the 28th and 29th of September 2005, the Focal Point resisted any attempts to amend the questionnaire. All efforts to discuss the contents of the questionnaire at the conference were subdued. This position of the Focal Point was seemingly contrary to the guidelines, which are explicit on the need to amend the questionnaire to prevailing circumstances (APRM Base Doc. para 17; APRM
Guidelines, para 11). At the same time the department of public services and administration did
not appear to be transparent in its proceedings at the consultative conference, as required by paragraph 22 of the memorandum of understanding which obliges states to foster open and transparent participation by all actors in the process.
As a result of the initial rejection of the proposals, put forward by ODAC in respect of the need to include issues related to freedom of information and protection for whistleblowers, those arguing for the expansion and modification of the questionnaire resorted to a formal engagement to get their issues accepted. Proponents of the inclusion of other issues in the questionnaire made a written submission on the issues of concern, advancing compelling arguments for the need to have the issues included in the questionnaire (Hutchings et al 2008). Their submission outlined the strengths and weakness of the current laws and procedures under the Public Disclosures Act 2000, and made constructive recommendations for improvements, providing substantial evidence to support its contestations (Submissions of ODAC on the right to information and protection for whistleblowers). To give substance to claims being made, ODAC conducted extensive research on the right to information and protection of whistleblowers. They found that accessibility to information, requested by individuals or organizations from private entities, was largely ignored. Probably this is due to the absence of concrete legal instruments to back such demands. In pursing their goal of having these issues accepted as core components of the questionnaire in the South Africa review process, ODAC needed to be both strategic and persuasive to convince all actors of their position.
The resort to a persuasive and convincing argument, to get the contentious issues at this stage accepted into the self-assessment process, points to the difficulty of actors who might wish to resort to bargaining. Even where specific interests of actors are at stake, bargaining as a means of
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pursuing a parochial interest in the decision-making process of the review mechanism becomes difficult to resort to. In a situation where reasoning forms the basis upon which issues are resolved in a decision system, it may serve as a point of reference for future similar cases. To take a cue from most judicial decision-making processes, for instance, giving reasons for decisions at each stage of the decision process can serve as an extra accountability mechanism in a decision system. Where decision makers are required to give reasons for their decisions, this provides incentives to make decisions that are based on scientific evidence. In such a situation decisions produced are more likely to be problem-adequate and represent the general interest of actors in the decision system.
Identifying gaps and proposing solutions on such a wide scale, in relation to the APRM, has proven to be a complex and demanding undertaking (Katito 2008: 4). As a result, instituting proper accountability measures may well protect the decision system from arriving at arbitrary and power-based decisions. The promotion of a reason-giving requirement also means that decision makers are aware that their reasons will remain in the spotlight as external actors determine their reasonableness or otherwise. As a result, decision makers, at all stages, endeavor to represent the most appropriate solutions available to address the deficiencies identified in the policy areas under scrutiny. This not only benefits policy implementation, but also contributes to providing stability in the decision process.
In response to a strong and convincing case to incorporate these issues into the questionnaire, and to begin a conversation on the issue of the right to information at the regional level, members of the ODAC team were afforded participation in subsequent workshops and conferences organized by the Focal Point, and in parliamentary ad hoc committee meetings. At the parliamentary engagements, for instance, presentations were made to the four committees set up by parliament to conduct an independent self-assessment (Hutchings et al 2008). ODAC’s concerns appear to have drawn some interest in the parliamentary sub-committees, leading to further elaborations of their proposals. At the ad hoc committees, on economic governance and management and on corporate governance, for instance, the committee accepted their submissions. It recommended to the review component on economic governance and management that it should address the failure of the Public Disclosures Act to protect whistleblowers. This was a clear recognition of the arguments advanced by the proponents for an
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expansion of a main instrument of the process, targeted at sourcing information that could lead to reforms in major policy areas of the participating State in the review process.
To further their course in getting issues, related to the right to information and the protection of whistleblowers, into the draft self-assessment report and the national programme of action, a follow-up submission was made by the ODAC to the technical research agencies that were contracted to work on the draft reports. This worked through the auspices of the SAIIA, which was appointed to collate views and submissions made by other entities into a composite draft report to make its submission. At the second consultative conference of May 2006, the issues raised by the proponents for the expansion of the questionnaire were listed, with a proposal to find the most appropriate mechanisms to implement and monitor the contents of the Public Disclosures Act. Overall, the draft country self-assessment report acknowledged that there were problems with the implementation and effectiveness of the Public Disclosures Act, and that it did not provide the adequate protection for whistleblowers that was expected.
The South African review process, at this point, should be seen to have evolved from the practice of arbitrary decisions into a merit-based decision-making system. It should be concluded that decision makers, by and large, were now pursuing the public interest, as opposed to their individual interests, in their deliberations over the various issues under consideration at the National Governing Council. The propriety of evidence adduced in support of the issues pertaining to the right to information, in particular, was given consideration, with a firm recognition of the evidence provided to the various scientific committees. The decision to finally have these issues included in the final report seems to have been as a result of the reasonableness of the argument put up by the ODAC. In considering the value of the information provided in support of their case, members of the review mission appear to have limited their judgment to the information provided.
From this point, the National Governing Council augmented the role of the Focal Point, and accepted amendments to the decision process. Most participants at the second consultative conference made contributions to the proposals put forward by ODAC. As a result, amendments were made, which appeared to be accepted by delegates who participated in the group discussion
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on issues related to the Promotion of Access to Information Act 2 of 2000 (Hutchings et al 2008).
However, the preliminary programme of action that was formulated through the National Governing Council still did not address gaps that were identified in the draft self-assessment report. In effect, specific responses were not provided for the gaps identified and no practical measures were outlined to mitigate the challenges contained in the report in relation to access to information.
4.5. Phase 3: The Final Report and Standard Decision Procedures Based on Accepted