In the last BSR, I explained our system of government and how it operates. However, the focus was on the elected part of government. We looked at the office of the President, the legislature and the role of Members of Parliament and local authorities and the role of councillors.
By Alex T Magaisa
However, if we left it at that, this explanation of our system of government would be incomplete.
There is, in addition, and crucially a large part that consists of the unelected. Their role is probably more important and far more impactful on people’s lives than the role of the elected. It is important, therefore, that we get a better understanding of the role of the unelected and the challenges they pose within the democratic arrangements.
While the elected are often the face of the State and government, the unelected are the people who do most of the work whose roles and responsibilities affect our daily lives. And while the elected are the face of power, the unelected probably wield as much, if not more power and influence in our daily lives.
Large swathes of the State are run by a large body of these unelected officers and this is often referred to as the bureaucracy. Ideally, these are public-spirited professionals who dedicate themselves to serving the public interest.
In our system of government, the head of this bureaucracy is the chairperson of the Civil Service Commission, which is the employer of all employees who form the civil service, often referred to as civil servants. Each ministry has a permanent secretary, who is the chief accounting officer and effectively runs the ministry, with the minister as the political head.
There are directors and principal directors who form the senior leadership of each ministry. At local government, while the elected mayor is the political head of the local authority, the town clerk tends to hold executive power and is effectively, the CEO. The departments of the local authorities, such as health, legal, works, etc are headed by directors all of whom are also unelected professionals.
Apart from these officers of the State and local authorities, there is a host of other agencies and bodies with varying levels of independence from the State which also play a critical role in our system of government. Their roles and functions are as many and diverse as their number. They include courts of law, independent tribunals, the central bank, tax collector, regulators, independent commissions, parastatals and other statutory bodies.
The common characteristic between all these agencies and bodies is that they are run by unelected officers, but they carry out public functions. In other words, those in charge of these agencies do not get their mandate directly from the people. They are appointed to their roles and they are paid from public funds.
We can cite a few examples of such agencies which comprise the unelected layer in our system of government. The most immediate example is the Reserve Bank of Zimbabwe, the monetary authority and financial regulator. Many will recall its role and impact during the hyperinflation era which reached a peak in 2008.
In recent years, it has had an important impact following the introduction of the bond notes, Zimbabwe’s pseudo-currency.
Another example is the ZBC, the country’s public broadcaster which is funded by a mandatory licence fees from users. Examples are many.
There are other obscure ones like the Tobacco Research Board (commonly known as Kutsaga Research Station) and the Medicines Control Authority of Zimbabwe. The Local Government Board, which vets appointments to local authorities, is also part of the unelected layer of government. There is also the Censorship Board, which decides what we can watch in cinemas and on television. There are many more such bodies, but this sample is representative of their diversity. All persons who serve in these bodies, including board members, are unelected.
Unelected bodies and professionals that serve them do have an important role in a democratic order. The core idea is that the administration of central government, local authorities or certain public functions is best placed in the hands of public-spirited professional rather than partisan politicians.
In an ideal world, they serve the State rather than political parties. In older democracies, bureaucracies are manned by professionals of diverse political views. They encouraged the role of unelected experts in administration in their early years and that tradition has been firmly established, although for various reasons it has faced challenges in more recent times.
Some argue that they are undemocratic and elitist while others accuse them of inefficiency and wastefulness. Others say they are easily captured by more powerful interests.
These criticisms notwithstanding, unelected professionals have been an integral part of government in many established liberal democracies. They fill in large gaps where knowledge is lacking among politicians. That is why even where parliamentary committees may be useful in holding government to account, special cases might require a specially appointed commission of enquiry, headed by a judge and qualified professionals. Thus, for example, while the Temba Mliswa-chaired committee is doing some visible work in the diamonds enquiry, it would probably be ideal to appoint a judge or retired judge, forensic investigator or auditor to carry out a comprehensive investigation into what happened to the Chiadzwa diamonds. Such a committee would have the knowledge and skills of handling such a huge investigation.
Another example is central banking, a highly specialised function which cannot be left to politicians who often lack the relevant skills, but also tend to privilege political interests ahead of specialist knowledge and decision-making in the sensitive area of managing the currency.
The hyperinflationary days when Zimbabwe’s central bank dabbled in quasi-fiscal activities are a reminder of the need to separate central banking from political considerations.
Likewise, courts play an important role in a democracy, but they need qualified, experienced and independent individuals to perform that role. It is also not necessary in some cases to go through the democratic processes of choosing office holders through popular majorities as this would privilege political considerations over merit. So, for example, choosing the head of the central bank or the chief justice should not be a matter of electoral processes.
But it must be fair, open and transparent in order to confer legitimacy.
Citizens, the elected and the unelected
In his new book on anti-pluralism, William Galston points out that the liberal democratic order rests on a “tacit compact” between citizens on the one hand and both their elected representatives and experts on the other hand. The difference between the latter two is that the elected representatives are a product of popular consent whereas the experts are creatures of appointment.
Elected officials get their legitimacy from popular consent, while the unelected demand freedom from popular consent. Instead, they base their legitimacy on a claim to superior knowledge.
The role of experts in government is based on the virtues of meritocracy or technocracy. As Galston points out, meritocracy is not necessarily incompatible with liberal democracy.
In fact, sometimes it is necessary to support and promote liberal institutions and principles. In this case the judiciary is a good example of an institution that consists of experts whose role in judicial review is critical as part of the checks and balances on executive and legislative authority. If they are independent and qualified, judges prevent excesses on the part of the executive and ensure that governmental power is kept in check.
They are the last defenders of the Constitution. Likewise, the central bank, which is run by experts ensures the country has a stable currency and the financial system is properly regulated. In a system that operates properly, permanent secretaries and town clerks who run ministries and local authorities respectively, can provide the expertise needed for these roles. Therefore, properly used, experts provide the competence that is needed to ensure that the governmental system works.
According to Galston, citizens often have no problem with the unelected experts as long as they are delivering prosperity. Instead, citizens might even defer to the unelected experts if they are doing well. Few, if any, will question unelected experts in times of prosperity. However, this relationship quickly disintegrates and breaks down when the experts fail to deliver prosperity.
Politicians, especially of the populist variety, are also quick to capitalise on these failures and lay blame on the elected experts. They are demonised as elitist and undemocratic or as inefficient and wasteful.
Nevertheless, it is important for these experts to have legitimacy. This legitimacy must come from the people. To quote Galston, “these meritocratic claims must be publicly acknowledged if they are to be legitimate. The people must authorise the institutions that allow meritocracy its rightful place within liberal democracy”.
In the same vein, the people can legitimately withdraw those powers. This is why our Constitution recognises that all executive, legislative and judicial authority derives from the people. It means the experts in the judiciary derive their authority and legitimacy from the people. They can, if they so wish, withdraw it.
Elitism and detachment of the unelected
While unelected experts have an important role to play within a liberal democratic order, one problem is that they tend to insulate themselves from the citizens, thereby causing a build-up of resentment both from the politicians and the public.
Galston characterises the elitist claim to superiority as one of the deformations of liberal democracy. “They [elites] are sure about promoting the public interest, but they understand it through the prism of their own class interests and biases”.
This is a problem which often leaves the unelected elites detached from the real lives and experiences of the rest of the citizens. Another scholar, Frank Vibert points out that those who form these unelected bodies tend to form “epistemic communities” coalescing around their specialised knowledge and skills.
They speak to their peers in the same field rather than to ordinary members of the public. Therefore, central bankers will speak to fellow central bankers in other countries while environmental regulators will also speak to fellow environmental regulators while election management agencies tend to speak to fellow agencies elsewhere.
These unelected experts tend to form cross-border policy networks usually outside the control of political authorities whose influence they despise and resist.
They do so on the basis that they share common problems with peers and that they can share experiences and find common solutions by working together. They often share a common dislike of political authorities, which they regard as interfering but this also means they disconnect themselves from popular consent.
They are constantly moving from one network to another or from one conference to another around the world all in the name of learning, sharing experiences and searching for solutions to common problems along with peers in the sector. The result is they fail to respond to the needs of the citizens, which creates a growing reservoir of discontentment.
This detachment also manifests in the relationship between the unelected experts and the elected politicians. In some cases, the unelected experts might even claim superiority over the elected politicians on the basis of claimed knowledge and skills.
This is notwithstanding the fact that elected politicians have a democratic mandate arising from popular consent, whereas the unelected have none of that authority. This is worse where laws are designed in a way that subordinates decisions of elected officials to decisions of the unelected.
A good example is the procedure for the appointment of a town clerk, where the decision of the elected must be approved by the Local Government Board. The saga over the appointment of the Harare town clerk has been due to the subordination of the elected local authority’s decision to the unelected and the interference of the Local Government ministry. The local authority must have more autonomy over the appointment of officers under its charge.
Lack of public consultation
Since the unelected claim superior knowledge and skills, they tend to believe they know best what is in the public interest and become arrogant that they do not consult or work with the public regarding important decisions.
Where there is consultation, it is often a box-ticking exercise to give the impression that the public is involved in the processes. People might not raise questions if things are going well. However, when problems arise, people begin to challenge the elitism of the unelected.
This was evident in 2016, when the wave of social movements began to question the central bank’s decision to introduce the bond note pseudo-currency. This was a classic case of citizens challenging claimed knowledge and expertise of the unelected.
Likewise, citizens should be free to challenge permanent secretaries and town clerks – unelected officials whose work nevertheless impacts communities. This problem is not confined to the unelected in State-related institutions but it is also evident in the civil society sector where unelected elites also claim superior knowledge of what the people want even though they don’t carry out any public consultations on these issues.
Problem of rent-seeking
With the elected, the traditional democratic arrangements are designed to promote accountability and checks and balances. Constitutional and legislative rules are structured in order to promote accountability.
Information on what MPs are doing or what they get by way of remuneration and allowances is often public information because the media and people are interested in what politicians earn.
By contrast, information on the remuneration of unelected experts is often insulated and scarce, although they are also paid from public funds. The media and people place a disproportionate amount of attention towards the elected compared to the unelected, which is unjustified. Systems of democratic accountability in relation to the unelected are often weak or non-existent.
In addition, MPs and councillors are subjected to an election process every five years. This is a form of electoral accountability where the electorate gets a chance to review the performance of the elected representatives. By contrast, most of the unelected experts are not subjected to similar public reviews.
Most are appointed on long-term contracts often with strong protections which make it hard or very expensive to dismiss them. Their wages and benefits are often of the lavish variety. Permanent secretaries, town clerks, CEOs of parastatals and statutory bodies tend to stay in their jobs for lengthy periods of time even when they are not performing well.
The boards to which they are supposed to account are usually appointed on a political basis and change depending on the Minister in charge of the relevant ministry. They are thoroughly ineffective as guardians of their organisations which leaves the unelected officers with a large amount of freedom and power which they often abuse.
One consequence is the rampant rent-seeking behaviour among the unelected experts. They have at their disposal vast amounts of public funds which they tend to abuse by paying themselves exorbitant wages, allowances and benefits.
This is why the biggest but understated layer of corruption is among the unelected elites in these agencies. A parastatal might be bankrupt but the board members would still be earning exorbitant fees and allowances.
The case of the Public Service Medical Aid Society is one clear example of how the unelected can abuse public funds. Most Zimbabweans will remember the scandal a few years ago when it was revealed that the Harare town clerk and his fellow directors were earning exorbitant monthly wages and benefits at the expense of ratepayers.
The irony was that these exorbitant wages were being paid at a time when the local authority was failing in service delivery. It is this disjuncture between the privileged lives of the experts and the public they are supposed to serve that causes serious problems for democratic governance.
The experts arrogate power to pay themselves huge wages and benefits because systems of accountability are weak and ineffective.
Other rent-seeking behaviour among the unelected can also be seen at lower levels where public officers charge rents in the form of bribes for service delivery. This can be seen at institutions such as the driver and vehicle licensing authority where drivers’ licences and vehicle permits are processed. It can also be seen at the Registrar-General’s Office where identity and travel documents are issued. Systems are deliberately delayed or complicated to ensure that users have incentives to pay bribes for quick and more efficient service.
The purpose of this BSR was to complete the discussion on our system of government. In the two articles, we have covered both the elected and unelected parts of our system of government.
While there are problems with the elected part of government, this BSR has shown that there are probably greater problems in the unelected layer of government. These problems are rampant because most citizens do not appreciate that the unelected are also part of government and ought to be monitored and scrutinised. The idea is not to demonise the unelected layer of government because there are many more who are professional and honest.
Further, as I have explained, there are perfectly good and legitimate reasons for having the layer of the unelected as part of the system of government.
But the dilemma must be acknowledged: that while it is necessary to promote efficient and effective government by taking power from elected politicians and giving it to unelected experts, there is also the risk of insulating unelected experts to a point where it becomes counterproductive due to elitism and rent-seeking behaviour.
The challenge is to strike a balance so that the unelected have their independence while at the same time they are held to account to prevent elitism and rent-seeking behaviour.
Finally, one part of the solution to the serious problems in our unelected part of the system of government lies in the elected part of government.
This is because the elected part of government has the power to appoint the unelected. In the past 38 years, the Zanu PF government has managed to collapse the division between party and state, so that in many ways, Zanu PF is the face of the State and the State is the face of ZANU PF.
This conflation between party and State has caused serious problems where most of the unelected experts are generally associated with Zanu PF. In other words, the problem associated with unelected experts, that of capture, is prevalent in our system of government.
It has seriously compromised the efficiency and effectiveness of the unelected layer of government. The unelected are as corrupt and greedy as their elected counterparts, if not more because they have greater control of resources. This is why it is important for the electorate to make a more informed choice.
Their vote can change not only the elected part of government but it will have far-reaching effect on the unelected layer of government. And this is probably the most significant effect, although it is the least visible. Hopefully, this BSR has shed some light into that area.
This article was first published on bsr.co.uk
Alex T Magaisa is a lawyer in Zimbabwe, lecturer of law in the United Kingdom, Zimbabwean political strategist and blogger.