7 - The Expectation of Fiduciary Responsibility

Summary

This chapter addresses, as a third component of the proposed framework, the third constituent expectation of trust in the citizen-government relationship: fiduciary responsibility. Employing scholarship on both private fiduciary law and fiduciary political theory, it defines the expectation as an expectation that the elected branches will fulfil their fiduciary duty of loyalty to citizens. This duty translates, the chapter argues, into an expectation of non-corruption from the elected branches’ staff. The chapter also details how the courts can enforce the expectation. It explains that for this component, the courts aim to curb corrupt practices from the elected branches’ staff, and it identifies steps the courts can take to do so: greater probing into the state’s financial resources; strictly enforcing public procurement law; holding non-state actors accountable to the public; involving specialised anti-corruption agencies; and imposing financial sanctions on government actors. The chapter illustrates these steps using cases from various jurisdictions, including South Africa, Uganda and the UK.