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Protecting the Inheritance

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Protecting the Inheritance Governance & Public Accountability in Democratic South Africa

Edited by Daniel Plaatjies

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First published by Jacana Media (Pty) Ltd in 2013 10 Orange Street Sunnyside Auckland Park 2092 South Africa +27 11 628 3200 www.jacana.co.za

Š The editor and contributors, 2013

ISBN 978-1-4314-0331-8 Also Available as an e-book d-PDF ISBN 978-1-4314-0332-5 e-PUB ISBN 978-1-4314-0333-2 mobi ISBN 978-1-4314-0516-9 Cover design by publicide Cover image: Gallo Images/Getty Images/Tom Stoddart Archive Set in Bembo 11/14pt Job No. 001957

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This book is dedicated to the women who marched against colonialism, segregation and oppression in 1913 in Mangaung

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Contents

Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Foreword by Collins Chabane . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Foreword by Wolf Krug . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xiii Preface by Anthony Butler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii 1. Introduction: The I nheritance Daniel Plaatjies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 2. Performance Measurement as a Means to Improve Governance and Public Accountability Andy Rowe . . . . . . . . . . . 7 3. The Evolving Role of Parliament in Governance and Accountability Max Sisulu . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4. Constitutionalism and Challenges in Governance and Public Accountability in Democratic South Africa Ngoako Ramatlhodi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 5. A Chief Whip’s Perspective on Parliamentary Governance in South Africa Mathole Motshekga. . . . . . . . . . . . . 46 6. Effective Democracy, Civil Society Movements and Public Accountability Thabo Makgoba. . . . . . . . . . . . . . . . . . . . . . . . . . 54 7. Protecting Procurement: Protecting the Integrity of the State Daniel Plaatjies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 8. The Light of Leadership: A Catalyst for Good Governance and Public Accountability Terence Nombembe . . . . . . . . . . . . . . 97 9. Economic Governance, Markets and Public Accountability: A Freedom Constraint? John M. Luiz . . . . . . . . . . . . . . . . . . . . 106 10. Ethics, Accountability and Developmental Public Administration: Key Challenges for South Africa in Addressing Corruption Richard M. Levin . . . . . . . . . . . . . . . . . 123

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Contents

11. Internal Audit: A Key Pillar of Governance Claudelle von Eck . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 12. Cooperative Governance of State-owned Enterprises (SOEs) in South Africa Mohamed Adam . . . . . . . . . . . . . . . . . . 163 13. Service Delivery: Constraints, Corruption and Cadres Paul Hoffman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 14. Building an Accountable Public Service Anne Mc Lennan . . . . 199 15. Conclusion: Protecting the Inheritance: Governance and Public Accountability in Democratic South Africa Daniel Plaatjies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

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Contributors

Mohamed Adam practised as an attor ney before joining Esk om as a legal adviser in 1991. At present he is Esk om’s Corporate Counsel and Di visional Executive (Regulation and Legal). He is a member of the King Committee on Corporate Governance. Advocate Paul Hoffman SC was a member of the Cape Bar for 26 years. In his new role in the NGO sector, he is a director of the Institute for Accountability in Southern Africa. Richard Levin holds a PhD in political theory and institutions from the University of Li verpool. He has ser ved as the Dir ector-General of the Department of Pub lic Service and Administration as well as the Economic Development Department. At present he is Director-General of the OfďŹ ce of the Public Service Commission. John Luiz is a professor at the Graduate School of Business at the University of Cape Town, specialising in b usiness, society and go vernment, and the economics of emerging markets. He has pub lished in excess of 60 ar ticles in leading journals and is the co-author or editor of several books. The Rev. Dr Thabo Makgoba has been the Anglican Archbishop of Cape Town since 2008. In 2009 he earned a PhD fr om the Uni versity of Cape Town for a thesis on spirituality in the South African mining workplace, and also has an honorar y doctorate fr om the General Theological Seminary in New York. He teaches ethical leader ship and ste wardship to MB A students at the University of Cape Town, and has been Chancellor of the University of the Western Cape since 2012. He publishes and speaks widely (see http:// archbishop.anglicanchurchsa.org). Anne Mc Lennan is an associate pr ofessor and the Resear ch Director at the Wits Graduate School of Pub lic and De velopment Management. She has ix

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Contributors

been teaching and super vising for 20 years in the broad areas of governance, development and the politics of deli very. She recently co-edited a book, with Professor Barry Munslow, entitled Politics of Delivery in South Africa (2009). Mathole Motshekga is a former premier of Gauteng and is currently a member of parliament and Chief Whip of the ANC’s parliamentary caucus. He is an advocate of the Supreme Court of South Africa and holds the degrees of LLM (Harvard) and LLD (Unisa). He is an honorary professor of Political Science at the University of Pretoria. Terence Nombembe qualified as a char tered accountant in 1990. He joined the Office of the Auditor-General of South Africa in 2000 in the capacity of Deputy Auditor-General and Chief Executive Officer. In December 2006 he was appointed to the position of Auditor-General of the Republic of South Africa. Daniel Plaatjies has a PhD in the study of Go vernance, Public Policy and Public Finance from the University of the Witwatersrand. He is a Visiting Professor at the University of Free State and is currently Head of Performance Monitoring and Evaluation within the Office of the Premier, Free State Provincial Government. He is also serving on secondment as an adviser to the Minister of Public Service and Administration. Plaatjies is the editor of Future Inheritance: Building State Capacity in Democratic South Africa (Jacana Media, 2011). Ngoako Ramatlhodi is the Deputy Minister of Cor rectional Services. He is also a chair for the Council of the Pr ivate Security Industry Regulatory Authority, a member of parliament, and an advocate for the Bar of Lesotho. Andy Rowe is an economist whose interests lie in the g rey areas of informal sector, household and r ural economic pr ocesses. He has a PhD fr om the London School of Economics and is a for mer president of the Canadian Evaluation Society. He is acti ve in the American Evaluation Association and the Environmental Evaluators Network. Max Vuyisile Sisulu is a member of parliament and w as elected Speak er of the National Assembly in May 2009. He holds Master’s degrees in Economics from the Plekhanov National Economic Institute in Mosco w, and in Pub lic administration from the Kennedy School of Government, Harvard University. Claudelle von Eck is cur rently the CEO of the Institute of Inter nal Auditors South Africa (IIASA). She has a DPhil from the University of Johannesburg.

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Contributors

Foreword by Collins Chabane

With my responsibility for perfor mance monitoring and e valuation in government, I have an interest in the views and debates regarding governance and accountability expr essed in this book. It is m y view that impr oved monitoring and evaluation by government and other par tners should impact on improving the governance and accountability of government. It is ther efore with pleasur e that I r ecommend this collection of vie ws about the jour ney that we have undertaken, a journey towards achieving the governance and public accountability goals that we set out at the start of the developmental state project. From the time of the ďŹ rst democratic government in 1994, we recognised the critical importance of estab lishing a n umber of instr uments, agencies, policies, checks and balances to ensur e that the model of go vernance and public accountability as set out in the Constitution is actually r ealised. As the world has changed and South Africans have engaged with these instruments, it is a healthy sign of a g rowing democracy that different interest groups have attempted to inuence the for m and functioning of go vernance and pub lic accountability measures and institutions. The debates and views expressed in this book contribute to the knowledge base that we need to de velop continually about the state of our institutions and practices. They further assist us to see ho w resilient these institutions and practices are in the f ace of chang ing needs and demands, and the y provide evidence that we as leaders and managers can consider as we continually assess and reďŹ ne our institutions and instruments. Ohm Collins Chabane, MP Minister in the Presidency for Performance Monitoring and Evaluation

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Foreword by Wolf Krug

Among the immense challenges confr onting South Africa since its peaceful transition to democracy have been the need to promote democratic governance, economic development, global competitiveness, and the upliftment of the poor and previously disadvantaged population. South Africa’s new constitution has enab led the countr y to estab lish a comprehensive and functional democratic governance system, designed to ensure that the state str ives towards good governance and public accountability. These are indispensable elements for achieving democratic freedom and prosperity. The enormous expectations after the transition to democracy earnevertheless gradually turning into a widespread feeling of dissatisfaction as a result of highlevel corruption scandals and slow progress in improving the living conditions of the poor. Moreover, the political discour se about the independence of the judiciary and the fr eedom of the pr ess have stirred up public discussion and concern about governance and accountability in South Africa. This book aims to stimulate debate about the need for an open, transparent and accountable government. It br ings together a number of leading author s in the fields of pub lic law and political science , who discuss the challenges of governance and public accountability in a transitional society in or der to identify ways of making South Africa’s government more accountable on the local and national levels. South Africa’s democracy is still y oung and a w ork in progress. In order to entrench democratic pr inciples in society, it is necessar y to strengthen the democratic legitimacy, transparency and efficiency of state institutions. It is our hope that the book you are holding in your hands will make a significant contribution to South Africa’s democracy and to the common under standing of the importance of governance and accountability. Dr Wolf Krug Southern Africa Representative The Hanns Seidel Foundation xiii

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by

W o l f K ru g

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Preface by Anthony Butler

South Africa has arrived at a difficult moment in her history. The low-hanging fruits of post-apar theid social reconstruction have been picked. The progress that has been made towards a fairer and more prosperous society is still dwarfed by the challenges that lie ahead. A global economic cr isis, community and labour unrest, tensions within the par ty of national go vernment, and the diseases of patronage and cor ruption have made the task of b uilding a more benevolent society seem harder than ever. Amidst the contestation and robust argument of a democratic society, one consensus has emerged: that South Africa needs a mor e effective system of public authority. Without a state that can drive, or at least facilitate, economic development and social change, the scourges of poverty and inequality will never be overcome. A state can be capable only if it is also accountable. Politicians and officials must be ans werable for their actions. They must be ob liged to pr ovide justifications for their actions (and also , on occasion, for their inaction). And there must be incentives, sanctions or other mechanisms to ensur e that those who are ostensibly the ser vants of the people tr uly do comply with the requirements for accountable and effective government. A capable state needs to possess wide-rang ing powers if it is to enfor ce binding decisions upon citizens in its pur suit of the social good. For this reason, the state is al ways a potentially danger ous system of author ity. It can be abused to subjugate citizens, rather than used to fr ee them. Democratic accountability that protects citizens from the abuse of state power is therefore also a prerequisite for a benevolent society. Like so much else in contemporar y politics, the processes through which South Africans might build robust systems of accountability are bewilderingly complex and poorly under stood. In order to make further headway in the venture of building a capable and accountable state, the intellectual energies of a wide range of thinkers about society will be required. Professional social theor ists – the academics in our higher education xv

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by

Anthony butler

institutions – have a huge amount of interest to say about public sector reform. Many scholars have powerful insights into institution-b uilding which ar e drawn from previous experiments in building accountable states around the globe. But there is at least as m uch to learn from what we might call ‘official’ social theorists – the highly reflective public service officials who work inside the state machine and have developed profound insights into its character. We must also, moreover, draw upon the wisdom of ‘amateur’ social theor ists: the citizens, political activists, business people and civil society leaders who interact with the state and attempt to drive social change through it. This book is exceptionally w elcome not merely because of the quality of its contributors’ writing, but also because it transcends con ventional divisions between scholars, practitioners and political activists. Rich chapters contain fascinating analysis of the accountability mechanisms that operate deep within the state: the instruments for evaluating the performance of officials and programmes; the design of public sector procurement processes; and the overall internal architecture of the state. Studies in this collection also explore the relationships between the branches of government, and the r ole of the cour ts and of parliament in pr omoting accountable government. In addition, some author s contribute welcome analysis of the role of civil society in democratic politics, the moral obligations of our political leaders, and the diverse demands that are placed on politicians, officials and citizens at all levels of the government machine. The essays in this book ar e sharply written and deeply infor med. They are also frequently controversial. They will provide a valuable stimulus to the conversation, or perhaps argument, that this society v ery much needs about how to build more effective and accountable public institutions. Anthony Butler Professor of Political Studies University of Cape Town

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Acknowledgements

I would like to thank DrWolf Krug and the staff of the Hanns Seidel oFundation in Johannesburg for suppor ting the production and publication of this book through Jacana Media. Special thanks to J acana Media for belie ving in this pr oject, especially Thabiso Mahlape for her patience while manag ing this project for more than two years and Russell Martin for his editorial work.

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i n t ro d u C t i o n

1 Introduction: The I nheritance Daniel Plaatjies

The South African story is complex. The constitutional negotiations fr om 1990 to 1994 delivered fragile but appropriate material conditions to manage the polarity between the liberation mo vements, the apar theid government and state, and captains of industr y. There is now a flourishing democracy, and constitutionalism and the legitimacy of the new state provide the standard of measure for governance and public accountability. States and governments exist to solv e problems of social or der, as well as to provide economic and social infrastr ucture. In pur suit of these objecti ves, developed and transitional states face complex challenges from rapidly changing domestic and global conditions impacting on the state, on markets and society. Many states, especially those in transition to constitutional democracies, and emerging economies, have been required to adapt or change their institutional arrangements of governance and public accountability in r esponse to to the global financial crisis. During these changes states ar e exposed to v arious risks, including the possibility of capture by oligarchs or criminals, which provides the captors with leverage over the distribution of resources, power and authority. The great danger is that when these pr ivate interests are not contained in the inter est of good governance, this will have serious implications for building the economic and social order.Their malign influence can impact on public policy, institutions, legislative and r egulatory environments and e ven the extent of democratic systems and leadership behaviour. Critical questions arise as a consequence. The sovereignty of the state, as Tony Benn argues, belongs to the people and they lend their po wer to those who r epresent them. In constitutional democracies, such as South Africa, checks and balances ar e considered fundamental in democratic go vernance, helping to manage the tensions originating from the separation of institutions. Does the state exist to adjudicate between various conflicting interests and forces, or does it exist to advance public accountability and good governance through a range of institutions for the general or national interest? 1

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dAniel PlAAtjies

Public accountability is a cor e measure in appraising the effecti ve and responsiveness of the state , government and markets to society and its democratic demands. Public accountability as an outcome of good governance is not only a measur e for deter mining the relations between economic and political classes and power, but also a measure to determine what these forces are and how they coalesce or form alliances to ensure a continuous separation of the state from society. Public accountability is therefore about constraining power cast in constitutionally bounded terrains. As a young democracy in the pr ocess of consolidation, South Africa faces unique challenges that mor e mature democracies tend to ha ve outgrown. The challenges include a confluence of profound political, economic and social problems, paired with a history of conflict and national trauma that is kept alive in a deeply di vided society. Institutions such as the judiciar y, civil service, security agencies and Chapter 9 institutions, all mandated to safeguard democracy, have had to operate in a highly politicised post-transitional context. Institutions and institutional practices have a longevity that often results in the misalignment of policy objectives with the systems for their implementation. Bureaucracy is slow and resistant to change, while the policy arena is fluid and flexible. In a w ay, this tension is at the hear t of the go vernance challenge in many modern democracies. The political system is f ar more responsive to the environment than the policy implementation infrastr ucture. At one level, this has positive implications, as bureaucratic delays mediate rapid policy change. At another le vel, this non-cor respondence of policy and implementation infrastructure has the potential to undermine democracy by obstructing the realisation of popularly suppor ted policy initiati ves. The debates around governance shed some light on this dilemma. By emphasising coordination, steering, integration, efficiency, effectiveness, oversight, transparency and accountability, governance provides a lens for focusing on key governmental processes. This enables an analysis of both the contin uities and discontinuities between the past and the pr esent. In South Africa, such an analysis will sho w how inherited legacies place institutional and bureaucratic limits on the present and future. The process of transition from authoritarian to democratic r ule is marked by both continuity and change, by which I mean that the present and future form neither a rupture with past nor a transcendence of the past. In 2011, I edited a collection of essa ys entitled Future Interitance, which explored the challenges faced by South African society, state, government and various public institutions in the post-apartheid era. The primary intention of the book was to reflect on the expectations, obligations and assumptions of the new democratic order by asking three interrelated questions: What is the state supposed to achieve? How will it get there? And where is it now? 2

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i n t ro d u C t i o n

Following on this, there is no w a r eal need to r eflect on the v arious instruments of governance and public accountability, so as to help b uild our knowledge and under standing of South African practice and exper ience, and influence the design of institutional mechanisms and tools to enhance governance and public accountability. This book provides a conspectus of different views of the architecture and practice of governance and public accountability, that is, the functional and structural dimensions of democratic South Africa. It does so b y asking these broad questions: • What is the natur e of the constitutional ar chitecture and discour se of governance and public accountability in South Africa? • What are the challenges to governance and public accountability? • How can w e ensure a state (with all its competing inter ests) continually strives towards good governance and public accountability? • How can we make leaders and institutions – political, economic and social – answerable for responsibilities and obligations assigned to them? The book also sear ches for applied kno wledge, good practices and futur e prospects regarding: • The rationale and efficacy of various institutional arrangements and behaviours in realising public accountability • The resilience of the political system and the practices of governance • The mechanisms and processes by which governance and public accountability are enhanced • The nature of accountability in the system of governance • The systems and mechanisms to counter fraud and corruption in both public and private institutions. Andy Rowe in Chapter 2 asks whether performance measurement can make a contribution to improving governance and accountability and concludes that, despite the evidence of much past experience, it does have significant benefits to offer. The South African constitutional system estab lished three separate, independent and autonomous spher es of governance, with parliament as the first among equals. Max Sisulu in Chapter 3 explores the dynamics of the parliamentary system, and consider s the challenges its member s face within the constitutional or der and as a democratic centr e of go vernment. The discussion is taken further by Mathole Motshekga in Chapter 4, in which he 3

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dAniel PlAAtjies

gives a chief whip’ s perspective on the v arious institutional ar rangements at the disposal of the institution of parliament and its members and examines the challenges they face of functionality, structural interaction and r esources that impede or facilitate their work, including the ability to allow for greater public participation in the proceedings of parliament. There is a vibrant pub lic discussion about our constitutional or der and the boundaries that separate the ex ecutive, judiciary and parliament. Ngoako Ramatlhodi in Chapter 5 r eflects on constitutionalism and its challenges for governance and public accountability, exploring among other things the limits that the Constitution places on major ity rule. He looks at the ability of the executive to implement thoroughgoing reforms and the accountability of the various branches of government to one another as well as to the general public. The civil society mo vement has an impor tant role to pla y in holding government and state institutions accountab le. The organisations operating outside government have filled this r ole more or less successfully , though certainly not without controversy. In Chapter 6, Thabo Makgoba explores the effectiveness of these non-state organisations and their contr ibution towards good governance and public accountability. Daniel Plaatjies argues in Chapter 7 that there is an increasing erosion of the hard-earned capabilities of the state thr ough deliberate collusi ve corruption and fraud in the pub lic procurement system of go vernment. This corrupt behaviour constitutes a state capture. The central thrust of the chapter is that the integrity of the public procurement system must be protected at all costs. Strengthening professional ethics in the pub lic service is an ongoing pr iority, and requires dedicated capacity. South African society has o ver years seen that pr incipled leadership can make the impossible happen by managing the present from the future, setting targets and conquering the fear of f ailure. Leadership has to be committed to delivering on performance indicators, and making all functions and functionar ies accountable. Terence Nombembe in Chapter 8 focuses on the cr ucial role of political leaders as the torchbearers and catalysts of good governance and public accountability. This chapter, written from the per spective of the AuditorGeneral (since December 2006), is infor med by his exper ience of elaborate public engagement with government leaders on precisely this subject. John Luiz in Chapter 9 consider s the extent to which those who mak e social and economic decisions ar e liable for the impact these ha ve on the economic, social and political fabric of South African society. In the course of examining the trade-offs that go vernment has f aced between realising postapartheid expectations and the country’s resource constraints, he takes account of the feature of accountability. 4

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i n t ro d u C t i o n

Public administration defines government practice. It provides the constructs, systems and pr ocesses that the go vernment uses to deli ver key services to the people. Despite progress made in pr oviding greater access to health car e, education, clean water and housing, there is still a long path to follow before the government is able to meet the basic needs of man y impoverished communities. Building an ethical pub lic service in post-apartheid South Africa faces major challenges. Richard Levin argues in Chapter 10 that while mechanisms to improve ethics are in place, these need to be both deepened and strengthened. One of the major r equirements is to b uild leadership that is ex emplary and oriented towards the public interest, characterised by inspiration, authority and innovation. There are two major issues that all organisations ha ve to face today: increasing complexity and constant v olatility. When complexity and v olatility meet human weaknesses, it creates the likelihood of inefficiency, corruption, risk and failure.Within this context it is becoming increasingly important to ensure that proper accountability processes are in place. Chapter 11 by Claudelle von Eck argues that internal audit is a key pillar of governance, particularly in the context of accountability. The internal audit function provides the leadership of organisations with the assurance about controls and advice on best practice. These aspects are particularly important in South Africa, which is r ife with corruption and inefficiency. State-owned enterprises (SOEs) ar e key engines in the economic and political prosperity of the countr y. Mohamed Adam suggests in Chapter 12 that the state will always need to intervene in the economy and in the running of SOEs so as to f acilitate the achievement of national pr iorities. SOEs can play an impor tant role in contr ibuting to ser vice delivery, infrastructure development and sustainab le economic growth. However, many SOEs have not been catalysts for growth and have been characterised by inefficiency, poor management and poor perfor mance. This chapter consider s what constitutes effective governance in the context of an SOE. Public goods and services are critical means for accelerating social inclusion in a country emerging from the inequalities of apartheid. In Chapter 13 Paul Hoffman tackles what he perceives as the critical challenges to public service delivery from the per spective of our Constitution and our foundational values. These values and principles need to inform our public administration. A series of recommendations is suggested as a means of impr oving service delivery. How do w e make the pub lic service more accountable and r esponsive to the needs of citizens? asks Anne Mc Lennan in Chapter 14. This chapter explores the need for building an accountable, professional and capable public 5

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service and consider s the de velopment of strateg ies that might be used for making this happen. Overall, the primary approach in the chapters reects a range of practices. What binds them is a common r eection on the de velopmental challenges and threats to the post-apar theid state. Good governance and its k ey feature, public accountability, are together the most impor tant vehicles for b uilding institutional capacity and enab ling the state to deli ver on its pr omises to the citizenry.

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Protecting the Inheritance