The use of administrative discretion within a functional system of governance has been one of the highly debatable aspects within public service delivery processes. There have also been concerns around issues of process and exercise of discretion by public administrators. Some have even gone further to assess the implications and effects of the exercise of administrative discretion on the ordinary citizen throughout their daily interactions with public officials. A very brief albeit broad reflection on the use of administrative discretion in the public service is posited here as one way, not the only way, of raising some questions on some of the recent decisions taken by public servants within our public services. Let me hasten to assert that these piece is not necessarily about questions of the legality of such actions, as it is an about reflecting on the effects of such on the citizen’s rights to access services delivered by the government through the broader public service. I will neither provide specific examples nor necessarily be conclusive because it is simply a reflection that may or may not generate any particular interest in the debate of how our particular public service fares. My intention is to ask the reader to begin to ask questions around their own chosen discretion based decision of various permutations within our public service.
The broad definitional concerns of discretion cover three key aspects. Firstly, discretion embodies some leeway or freedom to independently judge or act. Secondly, it also assumes the presence of ability or power to freely make some choices in an unconstrained manner. This assumes that those professionals who use discretion do so free from external controls, particularly of a political nature, that often overrides merit considerations and expert and rational decision making. Thirdly, administrative use of discretion also assumes possession of some wisdom and ability to carefully make adjustments of one’s actions as circumstances dictates or require. The importance of these three aspects were emphasized by one Davis when he asserted that “discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder”. When public administrators make use of their discretionary powers it could be very reflective of the intentions of not only their departments/organizations, but in essence that of a government, even when this decisions are perfectly legal.
Davis further maintains that “in a government of men and of laws, the portion that is a government of men, like a malignant cancer, often tends to stifle the portion that is a government of laws” and consequently a larger percentage of injustices to the general public are a result of the use of discretionary and less of these can be attributable to inadequacies in the rules and policy guides. The level of discretionary use differs within organizations.
When members of the public service in their different capacities, take decisions on the basis of their discretionary powers it overall reflects on the government’s administrative purpose and functional effects on the average citizen. When a “street level bureaucrat” in any village/settlement takes a decision on behave of his/her department or ministry it is a decision by government because in the public eye this particular officer is the face of government in that locality. However, at this level of discretionary use of power to make decisions, often this street level bureaucrats possesses identities that may not necessarily reflect the public perceptions about government and to that extent it could also be argued that on the contrary these officers can assume a different identity from that of government on the basis of how they use their discretionary powers. In the latter scenario, therefore, public satisfaction with these officers may not mean satisfaction with government, although often we rightly or wrongly assume so.
The above may sharply contrast with the use of discretion at the middle manager level. At this level the key responsibility is to give meaning to the legitimacy of the authority of public organizations in carrying out their functional responsibilities as they delivery different services to varying clientele. In the use of their discretion, this group has to constantly reconcile multiples origins of authority from their vertical and horizontal structural settings and the need to maintain and ensure relational cooperative interactions with various stakeholders.
Theirs is to balance organizational and clientele interests. At this level more often perceptions of public officials’ discretion is reflective of that of government again simply on account of their place and role in the public organizational hierarchy. Any discretion taken in any of our district or regional headquarters is by and large interpreted as government decision, understood or not from the point of view of the client. It becomes absolutely important to locate any variations of this discretion at this level, hence some have argued for more controls from not only the very top of the public service structure, but sometimes even from the political representatives. This presents debates on whether or not discretion should strictly be an administrative function and controlled within the professions or whether political control is best placed to protect the public interest in its broadest definition.
The last level of discretionary use is at the senior managers’ functional responsibilities, where scribes have often said this group must always be seen to be “on tap, not on top”. This is the team that must justify the use of administrative discretion to the elected officials. When permanent secretaries, directors and other senior public servants make sense of the decisions taken by their juniors at the other two levels, they not only own it but have to present it as government decision on assumption that any use of discretion at any level is guided by the overall legal, moral and ethical considerations that permeates well with the general purpose of government responsibilities to citizens. This understanding also assumes similar connotations of those decisions that are taken by the top officials as and when they invoke their discretionary powers. The nature of the organizational structure of our public service and the types of public policies that are the public servants’ daily operational activities are key to determining the extent and content of the use of administrative discretion at all these three levels.
Overtime, public servants or going narrowly, civil servants take the path of discretionary decision making and because their main responsibility is service delivery, these decisions are of a direct implication to the beneficiaries of government services. In this paper I am merely reflecting on the use of discretion and its possible effects and impacts on how it may either enhance the citizens’ envisaged benefits from the various government services or how it can actually be a weapon that derails and sometimes even denies public accessibility to services rendered and provided by government. It is therefore an expectation that up to this point those who have and use discretion in determining details and directions of government policies have always done so in the best interest of the public. In this respect I leave you the reader to reflect and place specific incidents known to you or by the public in general to begin to make a judgment on whether or not administrative discretion requires close control to protect the citizen rights and privileges. I invite debates on this issue, lets learn together.
*Molaodi is a Public Administration Lecturer in the Department of Political & Administrative Studies (University of Botswana)
