Interpreting the Public Financial Management Laws in Africa: A Legal or Practicing Duty?

Accountable Leadership in the governance structure in most African countries have been a great headache to change managers and policy makers, both local and international.  The severity of the pain is even heightened as cases and incidences of corruption utilize legal loopholes daily.

Many attempts by different African countries in the fights against corruption has been through the passage of laws and regulations expected to either make it difficult for officials to steal or to assign deterring punishments for acts of corruption. Worthy of note is also the setting up of various Institutions responsible for sustaining the fight against corruption.

These Public Financial Management laws and regulations are drafted by law makers and the contents made to meet every standard there is. The laws appear strict and fearful at a glance, and you can learn more about these laws by navigating through various sites on the internet. The euphoria surrounding their passage paint the picture of an early end to corruption and a new dawn of efficient utilization of public funds. In most African countries, there are multiple of such laws passed and praised by all manner of people across the length and breadth of societies. However, decades into the fight against corruption, defeating it in most countries has become a myth, as we stare it with an apathetic luxurious disdain. An attempt at its reduction rather seems an utopian novelty.

As a local governance practitioner, my attention is daily drawn to a piece of the puzzle often overlooked by all of us.  Who is expected to interpret and use the anti corruption laws. The lawyers or governance practitioners. Is the African law passed for prosecution purpose or for implementation purpose?. Lack of clarity on these two (2) approaches, have had a direct effect on the impact of these passed laws on corruption.

When laws are passed for prosecution purposes, the law is drafted for easy interpretation in the law courts by lawyers who in most cases are politicians. It is always a requirement for users to go to courts for interpretation. Emphasis is not placed on the practitioners applying the law but on exposing the practitioners.   Copies of such laws are easy to find in the law courts free of charge than the government institutions and when available, at a price. Large percentage of capacity building and consultations focused on preparing the prosecutors than the users.

However, when laws are drafted for application purposes it is easy to be interpreted at the points of use (Government Offices and Meetings) by practitioners. The laws does not practically contradict existing manuals and operational procedures. It is easy to make instant judgement calls consistent with the law. Key spending authorities (e.g Political class) are recognized by law properly not by inference. Ignorance of the law is a good excuse hence selective capacity building is not encouraged. Use of legal language is toned down and a profession outside the practice does not become the final arbiter. Embedded in this analysis is the relevance of the end user of the law during the drafting stage.

Arguably, most African countries pass public financial management laws mainly with prosecution purposes as main objective. Passage of laws are usually reactive fueled by the “going to get them”  idea. This bias is often deepened with the expression “Ignorant of the law is no excuse”. Characteristic of many PFM laws in Africa, the lawyer – politician is responsible for final spending authorization and appointment of officials. They are also responsible for interpreting laws in most law courts as most African politicians are lawyers. A picture of a deliberate attempt to be corrupt at the river source and come to the river estuary to defend themselves. It comes with no surprise, the legal approach to fighting corruption is the preferred choice over allowing state institutions to be politically independent.

The fight against corruption has been fought by the laws and for decades the picture is not frowning at the law breakers, but conveniently smiling at us with a touch of dimpled pomposity. It is important, our focus in the fight against corruption is rather on having strong non – legal institutions than legal ones. The legal institutions should come after strong non – legal institutions. If the practitioners can not easily make instant decisions with a clear understanding of the requirements of the law then the next alternative is to sideline the laws and respect familiar operational requirements and administrative regulations. This picture is actually the case in most African countries.

It is important to note that corruption is a symptom of system failure in the governance framework and not the sickness. Hence directly healing the symptom through passage of deterring laws is only an act of political expression of commitment. If Africa will win the fight against corruption, then there is the need to move from prosecution driven laws to usage driven laws. The practitioners need to be put at the centre of interpretation of laws.

Africa needs strong and ethical non – legal institutions that are independent and insulated with a focus on development.

Kingsley Bennett Nunoo

Budget Analyst

Ghana

+233(0)509853831

profnunoo@gmail.com