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THE SITUATION WITH REGARD TO TRANSPARENCY
AND ACCOUNTABILITY IN BENIN
TABLE OF CONTENTS
Introduction
1.0 Evaluation of the state of transparency and accountability in Benin
1.1 Transparency and accountability in the public services and institutions
1.2 Transparency and accountability in the judiciary
1.3 Transparency and accountability in the private sector and in civil society
2.0 Evaluation of measures adopted and identification
of factors hampering their success
2.1 Measures adopted in the areas of the public services and public institutions
2.2 Constraints
3.0 Strategy and plan of action for the future
3.1 The public services
3.2 The judicial system
3.3 Civil society
Conclusion
INTRODUCTION
The attainment of national sovereignty by the Republic of Benin in 1960 gave rise to great hopes among the people, given the exploitation, oppression and restrictions to which they had been subjected during the colonial period. But the disappointment of the people has been great since the Beninese took their destiny into their own hands. The non-transparent management of the nation's resources against a backdrop of personal rivalries, ethnic and regional divisions, budgetary crises, the pursuit of easy gain through embezzlement of public funds and corruption has been virtually constant since 1960. Such practices have almost always been the pretext for the many coups d'État in Benin during a period of chronic instability from 1960 to 1972.
The establishment of government control over the country's economy in 1974 placed substantial financial resources in the hands of the State. But this prosperity, which was largely illusory, promoted corruption and patronage. In addition, it concealed the weakness of an economy characterized by a chronic trade deficit and the virtual non-existence of a viable industrial plant.
Bit by bit, Benin sank into economic stagnation with serious cash-flow difficulties and the bankruptcy of almost all the public corporations, followed by massive dismissals of workers.
With each new political change, bold measures were announced and professions of good intentions to ensure the transparent and accountable management of public affairs were made and received extensive media coverage, but often they were never acted upon. In 1989, the Government of Benin was forced to resort to the first structural adjustment programme, with a view to reorganizing the country's economy and finances, which had been destroyed through mismanagement. What accounts for the persistence of this situation? The main factor is the absence of transparency and a sense of accountability at every level of government.
Transparency and accountability are today two of the essential components of good governance, which means the effective, efficient and lawful exercise of power and authority for political, economic, social and cultural purposes. In this context, transparency is understood to be the existence and proper implementation of appropriate laws, rules and standards. It is synonymous with clarity or the absence of opacity, obscurity or complication in the functioning of a structure.
Any kind of action for which one is not required to give an accounting is not a responsible action, for there is no possibility of correction or punishment. With the obligation to account for one's actions that flows from the concept of accountability and the fact that one must be answerable for one’s actions as a responsible authority, public affairs should be better administered. What then is the status of transparency and accountability in the public services of Benin, in the judicial system, in civil society and in the private sector? What measures has the State taken to guarantee transparency and accountability in the various areas in which it is involved? What is civil society doing? Lastly, what strategy should be adopted to promote greater transparency and accountability?
1.0 EVALUATION OF THE STATE OF TRANSPARENCY AND ACCOUNTABILITY IN BENIN
1.1 Transparency and accountability in the public services and institutions
Public services
The situation of the public services in Benin is a matter for concern. The diagnostic assessment carried out by the National Conference on the Civil Service, Modernization and Administration in December 1994 revealed that:
- The objectives and missions of the State are not defined with the requisite clarity;
- Legislation and regulations are incomplete, outmoded and often poorly enforced;
- The current administrative culture is based on "patronage" (a system of political protection) and not on merit;
- The organization of the administration suffers from numerous lacunae which are sources of waste and inefficiency;
- The atmosphere of public ethics has seriously deteriorated, resulting in a very unfavourable image of the public services and a great chasm between citizens and government agencies.
The conclusion that has been drawn from these observations is that the State is no longer capable of properly discharging its missions with respect to economic development, the optimal distribution of resources and the strengthening of the rule of law. Reform has become a pressing necessity.
Non-transparency in the functioning of the public services is primarily the result of the fact that relevant legal provisions do not exist or are outmoded or obsolete. This situation is due in large measure to Benin's troubled political history. From 1960 to 1972, chronic political instability left no time for the successive regimes to legislate and regulate properly the public and private affairs of the country. Beginning in 1972, legislative action became secondary owing to the regime's basic orientation. The revolutionary National Assembly was much more a rubber-stamp and a forum where applause was sought than a legislative body. From 1990, in the aftermath of the national conference that led to democratic alternation, to 1996, the urgent tasks of economic and financial recovery and partisan political disputes did little to foster legislative activity. By way of example, most of the rules that apply to public accounting in Benin are still those directly produced or inspired by the Finance Decree of 1912. The provisions governing civil status date from the colonial period.
The notion that one should be answerable for one’s actions is not a part of Benin's values and management culture. The officials of Benin's public services are scarcely accountable for their acts. The situation with regard to legal provisions and the absence of specific objectives and planning foster routine. In general, there is no regular auditing of public services and the oversight bodies that have been established do not function appropriately. The accountability of the agents of the public services in Benin is particularly weak in the vital sector of public finance. Almost all the public accountants who record the public revenues and who effect public expenditure do not provide any accounting of their management. The Chamber of Accounts of the Supreme Court has, to all intents and purposes, never functioned since its establishment in 1961. The General Inspectorate of Finance, the main oversight body for services and officials under the Ministry of Finance, has never been able to have an annual audit programme so as to carry out a systematic audit of those who manage public funds.
The consequences are low productivity of the services, corruption, nepotism, absenteeism, waste, etc. But one of the most serious consequences of bad governance in Benin is that it deters businessmen from Benin and abroad from investing in the country's economy and encourages many local enterprises to do business in the non-formal economy. Given Benin’s geographical situation and its potential role as a service and warehousing centre, the inability to attract foreign investors and encourage local enterprises represents a considerable financial loss for the country.
Institutions
In 1991 the institutions provided for in the Constitution of 11 December 1990 began to be established. Their names are the Constitutional Court, the Supreme Media and Communications Authority (HAAC) and the Economic and Social Council.
The objectives assigned to these institutions are set out clearly in the constitutional texts. Thus, the Constitutional Court is the State’s highest jurisdiction with respect to constitutional matters. It rules on the constitutionality of the laws and guarantees the fundamental rights of the human person and public freedoms. It is the body which regulates the functioning of institutions and the actions of the public service. (Art. 114).
The Economic and Social Council gives its views on draft legislation, ordinances and decrees, and on proposed laws submitted to it (Art. 139).
The purpose of the Supreme Media and Communications Authority is to guarantee and ensure the freedom of the press and the protection of the press and all the mass media within the law. It monitors compliance with the code of professional ethics with respect to information and equitable access of political parties to the media (Art. 142).
To the extent that the institutions in question are new, that the appropriate texts have created them and that they are functioning regularly, it can be said that the diagnostic is conclusive with respect to these organs of the Beninese State.
1.2 Transparency and accountability in the judiciary
Justice and transparency
The Constitution of Benin states in article 125: "Judicial power is independent of the legislative and executive branches. It is exercised by the Supreme Court and the courts and tribunals established in accordance with the Constitution."
It is through this judicial apparatus, constitutionnally recognized as a branch of government, that the State ensures the regularization of social and economic relations between legal entities and individuals and punishes breaches of the established republican order.
In reality, however, justice in Benin is still far from fully assuming this essential role and there is even talk today of a profound crisis of confidence in the justice system among those who have recourse to it.
This crisis of confidence is the result of a certain lack of transparency in the management of judicial affairs, and of a lack of accountability aggravated by the fact that it is not answerable to its constituency, namely, the people.
The search for a solution to this harmful situation for Benin's social and economic development prompted the State to organize the "General Convention on Justice" in November 1996. This was an opportunity for those who operate the judicial apparatus and the users of the justice system to make a diagnosis of the failings of the justice system and to envisage solutions to restore to the judiciary the full measure of the role incumbent upon it for the organization of institutions in Benin.
The notion of transparency embodies the idea of light and clarity, hence the sound administration of justice. Can one say that justice is being well administered today?
An opinion poll conducted between 30 September and 4 October 1996 by the Department of Political, Economic and Social Studies of the Benin Polling Institute in anticipation of the General Convention on Justice, revealed that: "the judicial process is long and slow (61%)"; 64 per cent of people do not have the feeling that judgments are fair and well rendered; 42.3 per cent of those who have experience of the justice system are not prepared to have recourse to the courts again in the event of a new conflict; 77.7 per cent of people do not know what a judge is or what a judge’s role and importance to society is; 80 per cent do not know what a notary or a process-server is. Lawyers are better known, but 54.7 per cent of citizens do not know what a lawyer is and what role a lawyer plays.
In a remarkable contribution to the General Convention on Justice, the judges of the Supreme Court, describing the causes and the manifestations of the crisis of justice, underlined the ambiguous nature of the judicial institution itself. Indeed, whereas the Constitution of 11 December 1990 asserts the principle of separation of powers by distinguishing the judiciary from the executive and legislature, the justice system, instead of being organized, administered and led in an autonomous manner, appears to be an appendage of the executive branch, the head of which continues to be responsible for it. This ambiguity still persists and sometimes results in a paralysis in the operation of different jurisdictions.
In order to evaluate justice in Benin, the Islamic Union chose three words, namely, misery, corruption and delay. Justice delayed is justice denied. Indeed the excessive delays in handling cases give the impression of a widespread impunity and sometimes vitiate the intended effect.
Other factors also contribute to the absence of transparency. The General Convention on Justice identified a number of these factors:
- The outdated nature of legislation, its shortcomings and incompatibility with the Constitution. By way of example, the law governing the organization of the judiciary dates to 1964, the Statute of the Judiciary dates to 1983 and perpetuates vestiges of the revolutionary period. In civil law, the French Civil Code is still applicable today and the "Bouvenet" Penal Code is none other than the French Penal Code declared applicable in French West Africa in 1877 and in Dahomey in 1930. Customary law has become unsuitable and it is at times virtually impossible for the judge to know what text is applicable in a given case.
- The inadequate coverage of the courts in Benin. The 1964 map of jurisdictions, providing for eight courts and an Appeals Court, has not changed since that time.
- The deteriorating standard of living of judges and court employees;
- The politicization of justice;
- Corruption: it is universally acknowledged.
Corruption is acknowledged by everyone as one of the blots on the face of justice. Did not the judges of the Supreme Court state in the course of the National Convention on Justice: "One thing is certain and that is that the corruption of judges is no longer a secret in Benin today. It is the subject of all conversations, whether secret, public, or even political. Sometimes the parties seeking to corrupt the judge are disappointed. Then they do not hesitate to bring the facts to the attention of the competent authorities, who then initiate disciplinary proceedings against the accused judges." Under the influence of corruption and in the absence of well-defined criteria for evaluation, court cases can drag on for years and the law can be applied in fanciful ways.
The justice system is not just judges. Judicial personnel and, in particular, the lawyers, play a very important role that places them in much closer contact with the users of the justice system. Often, however, funds or assets received by some of these personnel in their capacity as depositaries have been diverted for personal purposes, with impunity and without any guarantee of compensation for the damage sustained by the victims.
In the light of all the foregoing, it appears clearly that transparency is entirely lacking in the way justice is administered. It creates a kind of juridical insecurity.
Justice and accountability
One cannot mention accountability in the absence of any reporting of statistics allowing an assessment to be made of productivity within the judicial system and the appraisal and monitoring of the performance of each judge. No one wants to assume his responsibility fully, under the pressure of social, economic and political factors. It will be noted that the Ministry of Justice and the Attorney General before the Appeals Court require from time to time that the heads of the different jurisdictions and the Department of Public Prosecutions submit periodic reports. Such reports are, nevertheless, rare and ex-post monitoring was non-existent up until 1990.
A study made by the Ministry of Justice shows that productivity in the judicial sector is low and very uneven. This accounts for the lack of definition of precise quantified objectives to be achieved and the absence of any periodic appraisal and monitoring of productivity. In a diagnostic study carried out in 1995 on the functioning of justice, Mr. Straelhi, judge and President of the Office of the Director of Public Prosecutions of the Nancy (France) Appeals Court, asserted: "Judges in Benin are not in the least bit concerned with efficiency in their work or in moving cases along expeditiously." The same consultant emphasized: "It has been noted that there is no reliable yardstick of activity; only piecemeal statistical information is available and the courts, when they provide such information, present it in differing formats which do not always cover the same realities." He concludes: "It can be noted that, in a general way, the number of decisions rendered falls far short of the number of new cases filed...".
Oversight units within the judicial apparatus, in particular, the General Inspectorate of Judicial Services, were virtually non-existent until 1990. The establishment of such units since that time has broken down completely.
The absence of oversight over the activities of judges has also meant that the Judicial Service Commission, the disciplinary body for judges, has rarely taken any disciplinary action.
In the face of this less than distinguished situation, one may well wonder whether the State has taken measures to guarantee transparency and accountability in the judicial system.
1.3 Transparency and accountability in the private sector and in civil society
Transparency and accountability in the private sector and civil society are perceived mainly from the angle of the corruption that has become endemic in Benin. By opting for a State-controlled economy in 1974, the Government considerably inhibited private initiative. Because in an atmosphere of political dictatorship public enterprises have proliferated in every sector, they escaped from all the rules of sound management and before long they placed the entire country in difficulty. The situation of a State monopoly over the economy, coupled with a system in which freedoms were suppressed, ultimately fulfilled all the conditions for the development of corruption.
Consequently, instead of providing the State with resources (dividends - taxes), the public enterprises became financial pits swallowing up the nation's resources through unreimbursed bank credits, exorbitant management charges, the absence of financial discipline and corrupt practices.
In general, corruption thrives on a lack of information among users, the absence of appropriate procedures, or complicated and time-consuming procedures, the concentration of power, the absence of oversight and the absence of credible remedies.
The growing scarcity of resources resulting from this situation caused public enterprises to become indebted to the State and private enterprises, and a sharp increase in cross-indebtedness between such enterprises.
The system thus gradually collapsed. It then settled into a situation of generalized laxity, the development of impunity and a weakening of controls. The National Conference intervened in 1990 to lay down new ground rules by opting for economic liberalism.
However, many vestiges of this past State-controlled economy are still felt today. The first Government which emerged from the National Conference was unable to take the necessary measures to bring about fundamental change in the political environment that spawned corruption. Transparency and the "fact of having to provide reports" have not become the rule in the management of public affairs.
In the financial sector, for example, dishonesty in the collection of customs duties and taxes has reduced the State's revenues. Owing to the absence of reliable statistics, no assessment can be made of the extent of the loss that is to be made up for the State, but it is generally agreed that it is substantial.
Has not the unit on morality in public affairs established in the Office of the President in 1997, like some customs officials, suggested that if corruption were reduced by even half, the State could avoid the need for structural adjustment programmes?
The opacity of procedures in government public services and the large number and complexity of these procedures add to the delays in the production and distribution of goods and services. They foster corruption and make private enterprises non-competitive. It is virtually impossible to get goods out of a port within 72 hours, whereas the ports of Togo or Ghana are making worthy efforts to satisfy and attract their clientele. In France, two hours are needed, and in Hong Kong one hour. At a time of globalization of the economy and information, these data pose a challenge to us.
As far as road transport is concerned, extortion has assumed alarming proportions. Along 753 kilometres of road a distinguished journalist counted 25 customs agents, gendarmes and police officers, all of whom contributed to what he termed "a veritable racket in uniform."
In the commercial sector, the prices charged vary, because basically they are unlawful. Another corrupt practice involves overbilling and the circumvention of public competitive bidding procedures.
It is understandable in these conditions that corruption has assumed such proportions in all sectors of activity that it constitutes a veritable brake on the country's development. The moral decline and the perversion of mores that accompany corruption constitute the general atmosphere for the education of youth, which has dangerous implications for the future.
Corruption accounts for everything: low State revenues, indebtedness, unprofitable investment, company balance sheets, a flourishing informal sector.
Efforts by civil society to combat this scourge appear as a collective refusal to sink deeper, a leap towards life. The nation must mobilize through a national covenant to reduce the level of corruption by restoring a moral code in favour of dignity, thereby creating an environment conducive to the development of a prosperous free-market economy. But the military-Marxist dictatorship has left its imprint firmly on civil society, which is poorly organized to demand good governance.
Nevertheless, the mobilization and organizational strengthening of civil society will be major factors in the establishment of transparency and accountability. It is obvious that a Government that is concerned with sound management of public affairs will be a major trump for improving the climate.
The aspirations of the various sectors of civil society confirm that:
- Citizens want to have access to public services without having to pay "under the table;"
- Entrepreneurs want to be able to win a bidding procedure solely on the basis of the technical criteria for the award of contracts;
- Employees want sound and transparent management of their production unit;
- Retail traders want to exercise their profession without having to "grease palms;"
- Pupils and students want to know what the fees they pay are being used for;
- The people and the donor community want the funds that are made available for projects to be used for the activities that have been planned;
- The people demand that elections should take place in an atmosphere of transparency and accountability.
2.0 EVALUATION OF MEASURES ADOPTED AND IDENTIFICATION OF FACTORS HAMPERING THEIR SUCCESS
2.1 Measures adopted in the areas of the public services and public institutions
At the level of the public services and the public institutions
(a) Public services
It has already been pointed out that for many years little effort was made in the areas of legislation and codification. This lacuna has been partly filled since 1990. One must nevertheless note that for the most part the bureaucracy in Benin continues to dominate the machinery of the State and to dictate the laws for the whole of society. Between 1990 and 1993, which can be considered an initial sub-period, the regime which emerged from the National Conference attempted to modify the principal ground rules. An effort was undertaken to depoliticize the public services. Texts were drawn up and approved by the transitional Parliament. The effort to achieve transparency and accountability was manifest. Respect for certain rules, the observance of standards began to be seen. A start was made in putting a quality civil service in place.
In order to combat corruption, which is the most visible manifestation of the absence of accountability in the civil service, the Government of Benin has for some time now been introducing legal provisions, and establishing commissions of inquiry or inspection bodies, apart from units set up for a limited time.
Ordinance 80-06 of 11 February 1980, on punishment of embezzlement and certain offences committed by public agents, replaced and supplemented ordinances 76-9 of 9 February 1979 and 79-17 of 20 April 1979. These texts, which suspended or dismissed government employees for relatively minor offences such as breach of trust involving amounts of less than 5,000 CFA francs, have unfortunately had little effect. The establishment of a ministry responsible for the oversight of public and quasi-public enterprises has not succeeded in ending the mismanagement of such enterprises, with the result that they were all liquidated several years later. But among the measures that were adopted, the main ones have been the commissions of inquiry, of which there were many between 1972 and 1989. They uncovered a number of instances of malfeasance and facts indicative of mismanagement. However, the reports of these commissions were treated much more politically than technically, with the result that their effectiveness has been very relative. With regard to the permanent administrative structures entrusted with monitoring the quality of services rendered by officials and compliance with the rules of sound management, a special position is occupied by the General Inspectorate of Finances, which was established by a decree of 14 March 1960, even before Dahomey became independent. The one thing that this oversight body has lacked is the autonomy necessary to organize its audits on the basis of clearly defined technical criteria. The general inspectorate of administrative affairs responsible for overseeing the supervisory personnel was also established very early on. In 1976 all these oversight bodies were merged to create the State Inspectorate-General, an oversight body that was more political than technical, inasmuch as it is placed directly under the authority of the Head of State and the appointment of its members is at the discretion of the Head of State. The Audit Chamber of the Supreme Court, for its part, has functioned less well than the other bodies insofar as, created in 1961 under the Supreme Court, it has rendered practically no judgements relating to the accounting of public accountants.
Beginning in 1991, several ministerial inspection bodies, such as the General Inspectorate of Administrative Affairs, the Inspectorate General of the Security Services, the Inspectorate General of Finances, and the Inspectorate General of Public Works were established or re-established and began to be operational. The Audit Chamber of the Supreme Court gave the impression that it was re-awakening by starting to prepare an annual report to the Head of State on public management. But the habits of not having to be answerable and of impunity were such that the reforms were slow to start and take shape. All in all, the measures taken by the State at the level of the public services have not been up to the challenges to be faced; the bottlenecks and the hindrances were many; and the reforms did not last. Owing to a lack of time and a lack of persistence, the results achieved were weak indeed. Since 1993, the pace of reforms has slowed, the political factor has become preponderant, technical criteria have once again lost out to political criteria and patronage.
(a) At the level of institutions
From 1993 to 1998, the Constitutional Court played its role appropriately in ensuring compliance with legal provisions, and hence in ensuring transparency. One of the rare challenges the Constitutional Court has had to face was during the elections of March 1996, when the stakes were important and part of public opinion believed that the Court had encroached upon the prerogatives of the Autonomous Elections Commission (CENA), the body entrusted with preparing for and organizing elections. But such challenges have been few and far between. Since that time, the Court has handed down decisions on a number of issues at the request of citizens, institutions, associations or the Government. It has just handed down a series of decisions on five laws relating to the reform of local government in Benin which had been considered and adopted by the National Assembly between July 1997 and February 1998.
In the area of monitoring and regulation of the media, the HAAC has acquitted itself well. Admittedly somewhat late, it managed to impose a number of operating rules on publicly- and privately-owned newspapers, on the State-controlled radio and television. It succeeded without too much difficulty in appointing management officials of the Radio-Television Agency (ORTB), in liberalizing the use of broadcast wavelengths, in distributing government subsidies, and in promoting training of journalists and press owners.
Although its role within the State is not yet obvious and perceived clearly by observers, the Economic and Social Council, through its sessions, the positions it has taken, if only sporadically, is beginning to become a part of the scene and to win acceptance among the people.
Owing to their relative autonomy vis-ŕ-vis the Government, the institutions have taken measures to achieve the objectives set for them in the laws which established them. The respectable results that can be mentioned when considering these institutions are the fruit of the rule of law that has gradually been established beginning in 1990 and the practice of the men and women entrusted with the running of these institutions. But one might also add that the habits and the demands of the previous regime led many players in the country’s political and social life to wish for and to support various reforms. The democratic regime thus put an end to any power which the Government enjoyed. The decisions which the Government may take today can, in accordance with the provisions of the Constitution, be challenged by ordinary citizens and associations, and invalidated by the Constitutional Court. The Government is no longer able, for example, to do whatever it pleases in the area of the media.
The organizational autonomy, the financial autonomy of the institutions, and the guarantees of the security of tenure of most of the members of these institutions, confers upon them a considerable degree of accountability. The leaders of these institutions are expected to respect the limitations imposed by the texts. This they do as a general rule. They are in any event subject to the control of public opinion and are also vigilantly monitored by users and litigants. Although it cannot be replicated exactly, the situation of the basic concepts of good governance at the level of institutions provides something to think about as far as the public services are concerned.
Measures taken by the State within the legal system
The provisions of the Constitution, as well as the existing legislation and regulatory provisions, should enable the State to guarantee transparency and in the organization and functioning of the judicial system and should enable judges to assume the responsibilities incumbent upon them.
Until 1990, justice was always considered a public service to be organized, managed and led by the Executive. This is merely the reflection of the French concept of justice, which does not make the judiciary an independent branch of government, but rather a judicial authority subject to strong pressures from the Executive branch. This situation also follows from the concept of a single-party regime, one of whose foundations is the confusion of executive, legislative and judicial powers. The Constitution of 11 December 1990 emphasizes, however, that "the judiciary is independent of the legislative and the executive branch" (see article 125, paragraph 1, of the Constitution). Article 126, paragraph 2, for its part, specifies that "in the exercise of their authority, judges shall be subject only to the authority of law. Members of the bench shall enjoy security of tenure."
The rigorous application of the principle of the separation of powers should make it possible to guarantee transparency in the operations of the judicial system and to make judges aware of their responsibilities; they would therefore be genuinely independent and less susceptible to political, economic, social or cultural influences. The judicial system would thereby gain in efficiency and in performance and credibility.
Unfortunately, however, since 1990 the basic provisions relating to the organization of the judicial system, namely, Act No. 64-28 (Organization of the Courts) of 9 December 1964, repealed in 1981 at the time of "people’s justice" and reintroduced by Act No. 90-003 of 5 May 1990, and Ordinance No.21PR of 26 April 1966 on the organization, functioning and powers of the Supreme Court, repealed in 1981 and reintroduced by Act No. 90-005 of 1 June 1990, continue to apply. The same is true of Act No. 65-3 of 20 April 1965, governing the membership, organization and functioning of the Judicial Service Commission, the institution which under the Constitution is supposed to assist the President of the Republic in his role of guaranteeing the independence of judges and serving as the disciplinary body for judges. Efforts to amend the law in order to bring it into line with the Constitution appear to be at an impasse, precisely because the executive branch wishes to preserve its prerogatives with respect to the appointment of judges.
The Statute of the Judiciary is completely outmoded and no longer suited to real conditions today.
The conduct of proceedings and the proper application of the law are also factors for transparency and accountability. As to the Criminal Code, which provides for punishment of acts of corruption and economic crimes, it has been strengthened by several laws, including Ordinance No.79-23 of 10 May 1979, punishing embezzlement, corruption, extortion and similar offences committed by government agents.
Apart from the organization proper of the judicial system, the functioning of the different courts and the handling of court cases require the practice of transparency and the acceptance of accountability.
The codes of civil and criminal procedure provide for the principle of a double degree of jurisdiction and control exercised by the Supreme Court. These are the remedies that guarantee a degree of transparency, provided that the system operates correctly.
Measures taken at the level of the private sector and civil society
Although it began to be organized only beginning in 1967, civil society nevertheless has played a significant role in the relatively unsuccessful efforts of the State to introduce greater transparency, but especially greater accountability in the life of the nation. It was indeed under its watchful eye that many economic crimes were prosecuted. Had it not been for the courage and the farsightedness of one of the organs of a free press in 1987, the Tam-Tam Express, the B.C.B. case would never have been uncovered, when millions of CFA francs had been misappropriated, squandered or fraudulently transferred. Commissions of inquiry such as the Ahouansou Commission or the Amoussou-Kpakpa Commission would perhaps never have been created.
Another recent victory of civil society is the vigilance with which it has followed the question of the implementation of Article 52 of the Constitution. In accordance with the provisions of that article, the President of the Republic and the members of the Government must declare their assets upon taking and leaving office. It has proven difficult to enforce this measure owing to the reluctance shown by the Soglo Government. However, in April 1996, the Kérékou II Government published the required list, but there is no constitutional means of verifying its accuracy.
The creation of ECOWAS in 1975 was a genuine turning point with respect to the movement of persons in West Africa. The elimination of visas for stays of less than 90 days, the spectacular development of roads or their improvement in recent years have made a substantial contribution to the increase in intraregional transactions.
Benefiting from such favourable conditions, regional trade in West Africa could have developed spectacularly had it not been for the extortion of truckers and ordinary travellers by the police, gendarmes, customs agents and even the Water and Forest Rangers. This phenomenon has become a veritable plague throughout the sub-region, although there are differences from country to country. Civil society has always reacted to this situation, without much success.
2.2 Constraints
There are constraints that counter, brakes that create blockages and obstacles that prevent transparency and the exercise of accountability in Benin.
Sociological and cultural constraints
These constraints are of a social and cultural nature. The functioning of society in Benin is to a great extent based on mystery, on non-transparent and non-rational factors. The influence of the Voodoo religion clearly plays a significant role. Social rules are relatively diffuse and poorly observed. In Beninese society the concept of individual responsibility, understood to mean accountability for one's acts, is not very developed. There are frequent attempts to avoid responsibility. The notion of individual fault that should follow from this concept is not readily accepted and the necessity of punishment even less so. Many players in social life find the standards to be too restrictive and prefer informal discussion and patched-up compromises.
These factors are not conducive to the spread of transparency and accountability in the country's public services, institutions and judicial system.
Red tape and economic hindrances
One of the main obstacles to administrative reform in Benin is the bureaucracy. A bureaucratic regime is characterized by a system of governance in which the central administration is the dominant decision-maker. In Benin, this situation has prevailed since 1960, but especially from 1974 to the present. The bureaucracy has virtually not changed at all in terms of its nature or conduct since the arrival of the democratic regime in 1990. While one might see a slight retreat between 1990 and 1993, it can be argued that bureaucracy has returned in force with the same practices, the same behaviours, and the same results. A bureaucratic regime is designed to control the major public and private resources of the nation and is organized to promote a political logic based on nepotism, patronage and corruption. Given that fact, the dominant strategies for obtaining a bigger share of those resources for oneself consist in getting a "cushy" job in the civil service or obtaining the favours of well-placed high-ranking officials. This is exactly what one is seeing in Benin. The bureaucracy embodied in the civil service remains one of the major obstacles to good governance, for by virtue of its dominant position it continues to play a preponderant role in the allocation of resources. The countervailing powers, such as oversight bodies like the Constitutional Court, have little influence over it, since all financial resources, both national and external, pass through the civil service. The absence of adequate oversight in the public services aggravates these practices and strengthens their role. It is for these reasons that the civil service, aided by the political leaders, deliberately blocks the functioning of the Audit Chamber and the ministerial inspectorates.
Taken a bit further, this question poses the problem of salaries and emoluments (bonuses, allowances and other benefits) in the upper levels of the civil service and in sensitive administrations and sectors. There is a need to seek and find a level beyond which the basic and legitimate needs of senior civil servants having been met the nation will be able to require more of such civil servants and mete out punishment in cases of deviation from the expected standard of conduct. Very often such extremely vital questions for the nation are dealt with superficially. However, one must have the courage to attack these problems at the root, for a solution to these problems would remove temptation for many public employees and would induce them to circumvent less the legal provisions in force, to refrain from ignoring standards and flouting the established rules.
Political obstacles
The real obstacle to transparency and accountability in the public services in Benin is the blockage of any significant progress by political leaders. The politician who is lacking in ambition and vision will fear the objectives of transparency both in the public services and the judicial system. In his mind, the administration does not exist for the purpose of providing service to users, nor does the justice system exist in order to rule fairly in cases of dispute; rather they are the instruments of his power, domination and control over his subjects and ultimately the country.
The example of the distribution of building plots, which is indescribably slow in Benin and which is still done poorly, is instructive. This situation is a model of lack of transparency and constitutes a major obstacle to the development of Benin’s towns.
Control over access to and removal from high administrative functions by politicians absolves the holders of such functions of any responsibility, and many of such individuals become haunted by the idea of losing their job. This is why so many submit not only to the will of their patron, but embrace his policies, if only for the moment. Even the judicial system, which should for the most part be spared the phenomenon of politicization, is largely subject to its influence.
Controlling the management of a number of major companies has become a "cash cow". Every trick in the book is used to satisfy one’s needs, from giving jobs to faithful followers to rigging the award of contracts.
For the politicians, any reform aimed at making contracting practices more transparent, for example, and making the general managers of public enterprises more accountable for their management, is a threat to their power. Such a situation would dry up their sources of financing.
The organization of civil society is unfortunately only in the embryonic stage, with the result that it does not succeed in playing its proper role as a pressure group. The organization and mobilization of civil society are conditions for eliminating the constraints identified above and removing obstacles.
The holding of the Forum on efforts to combat corruption is a new opportunity to combat the rot that must be attacked by civil society if the latter is to become a genuine force and make a decisive contribution in the building of the nation.
3.0 STRATEGY AND PLAN OF ACTION FOR THE FUTURE
The situation described above requires the development of a strategy together with a plan of action. The Government of Benin is not without such a strategy and plan with respect to the reform of the public services and the justice system. Now for the first time ever in Benin, civil society has also taken a number of decisions that run along the same lines as were expressed at the 1997 Forum.
3.1 The public services
Administrative reform
The reform strategy defined by the State, which is still quite current, covers three essential points:
- Accountability of managers, mobilization and appropriate use of the intelligence of agents;
- Progressive reform on the basis of the values of Beninese culture and search for a broader consensus;
- Constitution of a solid and stable administrative foundation in core areas for priority action by the State.
This strategy is based on an eight-point reform programme, namely,:
- Clarification of the State’s needs;
- Rationalization and stabilization of structures of administrative organization;
- Establishment, stabilization and application of standards, rules and procedures;
- Devolution and decentralization;
- Strengthening of national capacities in the light of the new model of administrative reform;
- Development of a new administrative culture focused on merit, public service, teamwork, and the monitoring of management or results;
- Establishment of rational information management; and
- Human resources development and strengthening of national management capacity.
With a view to promoting the implementation of these eight programmes, they have been grouped into two blocks of four programmes each. The main question that arises today is the slow pace of implementation of these reform programmes and the ratification of what has already been achieved. From the organizational point of view, the essential stages that have been completed following the National Conference are the seminar-workshop on the institutional setting, in October 1996, and the reform of the administration in 1997. In the civil service, a number of reforms have nevertheless been undertaken, including:
- Reform of local government authorities;
- Reform of education;
- Reform of the health sector;
- Reform of the agricultural sector;
- Reform of public finances; and
- The Programme of Support for Economic Management (PAGE).
All the major elements (diagnostic, programmes, priorities) are already in place, they must now be put into effect. The reform of the administration is in need of a fresh impetus.
3.2 The judicial system
The holding of the National Conference on the Justice System, in Cotonou from 4 to 7 November 1996, was justified by the many failings of the judicial system described above.
The Conference was an opportunity to diagnose the ills besetting the system and to attempt to provide remedies. These remedies concern both the organization of the justice system and its institutions, the conduct of judicial proceedings, and the moral and intellectual qualities of judges and other judicial employees. But if care is not taken, the obstacles and other constraints which still exist could undo the results of the various actions that have been taken.
Organization of the judicial system
The National Conference on Justice concluded that there was a need to improve the organization and functioning of the justice system and to provide a new legal environment for the judicial system. This entails:
- A reform of the judicial organization characterized by the decentralization of jurisdictions, the devolution of cases, particularly at the level of the Supreme Court, by the granting powers for administrative matters and accounts to appeals courts and perhaps even to courts of original jurisdiction.
This must be coupled with the provision of appropriate and adequate infrastructure and material resources to the different levels of the courts.
- Updating of the Statute of the Judiciary, with guarantees for the independence of judges, a definition of the modalities for applying the principle of security of tenure of judges and a reaffirmation of the role of the judiciary with a view to creating better conditions for the upgrading of judicial personnel. This reform must also be aimed at depoliticizing court personnel.
- Promulgation of the law relating to the membership, organization and functioning of the Judicial Service Commission, which, once revamped, will be better able to perform its functions relating to overseeing the careers of judges.
Judicial procedures
The reform of the code of civil procedure and the code of criminal procedure has become a pressing necessity, for the degree of transparency in the conduct and disposition of judicial cases depends on the quality of these codes.
With regard to the code of civil procedure, reform has already begun and the emphasis has been placed on the capacity to ensure control over court dockets and the expeditious handling of cases. The process of introducing improvements has become an unavoidable necessity.
This code must also take into account the uniform laws of OHADA, in particular with respect to recourse to national jurisdictions and the OHADA Court of Justice and Arbitration.
With regard to the code of criminal procedure, the reform of which is also under way, the aim must be to ensure respect for and the safeguarding of human rights through a restructuring in accordance with the Constitution of preventive detention, detention pending trial and application of the principle of the presumption of innocence affirmed in Article 17 of the Constitution.
Strengthening of legislation and codification
The creation of a new legal environment requires the strengthening of legislation and codification. This entails undertaking a thorough-going reform of the legislation and a systematic effort of codification with a view to providing judges with reliable working tools. In this connection, the National Commission on Legislation and Codification proposed by the National Conference has already become a reality. Its purposes are:
- To make an inventory of existing and applicable provisions, with an exhaustive catalogue of the applicable texts;
- To review the draft legislation that has already been drawn up and to make proposals aimed at expediting its adoption;
- To identify the main priorities for the preparation of texts over the next five years;
- To define and implement a systematic policy for codification.
The emphasis will be placed on strengthening provisions and procedures for the suppression of corruption and malfeasance as part of the effort to make the conduct of public affairs more moral.
As a part of the strengthening of legislation, several draft codes have been prepared, some of which are already before the Chamber of Deputies. These are:
- The Code of the Individual and the Family;
- The Code of Criminal Procedure;
- The Code of Civil, Commercial and Administrative Procedure;
- The Criminal Code;
- The Law on Civil Status.
Activities are also planned with a view to giving wide publicity to these texts.
In addition, the inventory of applicable texts is currently under consideration with the assistance of the World Bank. This will make it possible to identify those draft laws which call for revision and the areas in which legislation is still needed.
Strengthening of human resources
The reforms adopted take into account the qualitative improvement of personnel (judges and others) and the strengthening of the code of professional ethics for the members of the different legal professions.
This strengthening will be achieved firstly through the recruitment of judges and court clerks in adequate numbers to meet the existing needs. In order to guarantee quality services, it is clear that basic and advanced training and specialization for leaders must be provided.
Special attention will be paid to strengthening the code of professional ethics. A series of activities in this connection should make it possible to ensure diligence and exactness on the job and improve the quantitative and qualitative performance of judges and other personnel of the justice system. In this connection there are plans to define the objective criteria for evaluation of performance with the aim of better appraising the work of judges. The General Inspectorate of Judicial Services, which is gradually coming to life again, will be the linchpin of the implementation of this plan.
More specifically with regard to court employees, a revision of their respective statutes is planned with a view to improving their intellectual and moral quality. Systematic prosecution of court employees who abuse the trust of their clients, the establishment of a Lawyer's Fund for Monetary Settlements (CARPA) and similar bodies for process-servers and notaries in connection with reforms already under way will make it possible to deal with the dishonesty of which some individuals working in the justice system are guilty.
3.3 Civil society
In view of the necessity of its engaging actively after the close of the Forum in efforts to combat corruption, civil society has decided:
- To establish an association in accordance with the provisions of the Act of 1901 to coordinate, promote or support initiatives to combat corruption;
- To set up a unit to support the implementation of resolutions adopted at the Forum and on convening a general assembly for this purpose within two months.
Civil society, through its standing bodies, plans to take action with a view to:
- Proposing draft legislation to improve the legal climate for efforts to combat corruption;
- Initiating campaigns for spreading awareness of the rights of users and strengthening transparency of transactions and the management of public affairs;
- Introducing into all transactions and acts relating to the management of public affairs a covenant on integrity along the lines of the model proposed by Transparency International as a preventive measure in the effort to combat corruption;
- Organizing, several months before the dates of elections, national campaigns against the buying of votes;
- Training local agents involved in spreading awareness of laws and regulations and volunteers wishing to assist in detecting and combating corrupt practices;
- Strengthening and supporting activities involving civics education;
- Obtaining the contribution of all structures and individuals who wish to create a national spirit to fight for the prevention and suppression of corruption and for an end to impunity.
The implementation of this ambitious programme requires firm determination, great motivation and uncontested leadership.
CONCLUSION
It is a very bitter observation to have to make but the measures taken by the State have been quite inadequate and the results achieved have been very modest indeed with respect to transparency and accountability in Benin. Good governance, which implies better management of public affairs, has a direct influence on the solution of economic, social and technical problems of a given community. Today, no African country can afford the luxury of ignoring this; the prosperity and survival of each and every African State on the eve of the third millennium depends on such a recognition. Benin's leaders and the various players in the political and social sphere must acquire a new awareness of the fact that the country is in a very delicate situation and that the time is long past for cosmetic solutions, which are little more than expressions of good intentions. What is needed today is solutions that are realistic yet bold. Given the role entrusted to it under the Constitution of 11 December 1990, the judicial system must be one of the most important elements, the basis on which the entire system of governance in Benin will rest, in order that transparency and accountability may become established facts throughout the public administration and in all sectors of the economy in Benin.