Why Ethics Regulations Continue to Fail SA
Endless media accounts of conflicts of interest situations among public officials reveal two broad failures of South Africa’s integrity management system.
Collette Schulz-Herzenberg is a Senior Researcher in the
Conflicts of Interest project, Institute for Security Studies (ISS)
Corruption & Governance Programme in Cape Town
Endless media accounts of conflicts of interest situations among
public officials reveal two broad failures of South Africa’s integrity
management system. First, in the unregulated grey zones numerous
opportunities for unethical conduct remain. Second, where regulations
do exist they are often ineffective.
In the first instance, important examples include the revolving door
between government and business where public officials are recruited
into the private sector, taking up lucrative jobs with the same
corporate interests who had business pending before them when they
served in government.
South African law is yet to recognize that the rapid movement of
public officials threatens the integrity of government in two ways:
public officials may be influenced in their official actions by the
promise of a job with a company seeking a contract or attempting to
shape public policy.
Alternatively, former public officials have extraordinary access to
lawmakers and can use their government connections to benefit themselves
or their business interests after they leave office.
‘Cooling off period’ laws attempt to prevent these abuses by
restricting private appointments for a period of one year usually. Yet,
they are absent in South Africa. Another grey area involves the
interconnectedness of the incumbent ANC party in government and black
economic empowerment businesses that tender for public contracts. These
examples highlight the need for tighter regulations, yet there is
little political will to tackle these areas head on.
So why is it that these conflict prone situations remain
unregulated? A fundamental reason relates to the general confusion
about the nature of conflicts of interest, or more specifically, what
constitutes a conflict. This ambiguity plays itself out in two opposing
trends. The first trend is seen with great regularity in media
reports, where conflicts of interest are confused or equated with actual
corrupt or unethical behaviour. In reality, conflicts of interest
should be understood as a situation, not an action. Public officials
may find themselves in a conflict situation without actually behaving
corruptly. In other words, a conflict of interest does not refer to
actual wrongdoing, but rather to the potential to engage in wrongdoing.
Of course, the litmus test is whether the individual removes him or
herself from the conflict situation. An official may or may not allow
the interest that conflicts with the public interest to wrongly affect
his or her conduct. But when reported in the media, however
well-intentioned, it is misinformed or sensationalized; the result can
be detrimental to the fight against corruption.
Over time, the public may even become dismissive of conflicts of
interest regulations as way to combat corruption. Responsible reporting
is mindful of the differences between non-compliance on the one hand,
and a genuine conflict of interest on the other. Similarly, when a
potential conflict arises and comes to the public’s attention it is an
encouraging sign that ethics mechanisms are working. After all,
conflicts of interest are a naturally occurring phenomena, and an
inevitable consequence of the fact that people occupy more than one
social role. Attention should rather focus on those individuals who
knowingly decline to remove themselves from a dubious conflict
situation.
The other trend is found among politicians, who tend to adopt a
narrow interpretation of what constitutes conflicts of interest. Of
course, there is general agreement that bribes, kickbacks and extortion
all involve a conflict of interest. Yet, the mere abuse of influence,
such as nepotism, favoritism and misuse of state or public property,
also constitute a conflict of interest but those who hold positions of
power are less accepting of these aspects.
These tensions highlight a critical issue – that South Africa’s
public body remains somewhat unsure about what constitutes a conflict
of interest situation in public life. The ensuing confusion continues
to hold up regulatory efforts, and ultimately, the fight against
corruption in the public sector. Until we reach a broad consensus about
what should constitute minimum standards of ethical conduct for public
officials, a number of activities that are ethically dubious will
remain quite legal and those in power will dismiss sensationalist
reporting for being precisely that.
Where regulations exist, they are often ineffectual, due, in part,
to lax monitoring and oversight. Take financial disclosure as an
example. Non-compliance by public officials, across legislatures,
executive institutions and the civil service is a serious problem
because there are few incentives for public officials to submit their
records on time.
First, public officials know that their forms are rarely, if ever,
scrutinized by an overseer, and are thus unlikely to be missed. The
most meaningful incentive however is driven by concern on the part of
the public official that s/he faces disciplinary measures for
non-compliance. However, in reality, this rarely occurs. Serial
offenders are not being dealt with harshly despite the range of
penalties that exists. Registrars and Integrity Commissioners lament
their inability to enforce penalties, which is usually the
responsibility of senior political figures such as Speakers of
Parliament, or Ethics Committee members.
The Public Service Commission recently reported, with dismay, a 48%
compliance rate among senior managers in the public service in 2008,
moving thereafter to recommend charging non-complying members with
misconduct. The real concern here is not of non-compliance per se.
Rather, that various ethics regimes across government are unable, or
unwilling, to employ punitive measures to chastise those who, with
apparent ease, dismiss their duty to remain publically accountable. This
makes a mockery of the entire disclosure mechanism, which becomes a
hollow exercise.
Beyond this, there is a far more fundamental issue that seriously
undermines existing ethics and disclosure regulations. The practice of
monitoring and oversight to detect potential conflicts of interest is
difficult because the very mechanism that oversight relies on, that of
public access to information contained in disclosure records, is
notoriously hard to realize.
Take the case of parliaments. Rudimentary monitoring ensures
compliance is met. But effective oversight requires more rigorous
monitoring to identify and flag potential conflicts or irregularities
in disclosure documents and powers to institute investigative
proceedings. The South African case falls short in this regard. There
is little comprehensive or proactive monitoring of elected officials
disclosure forms. Instead, oversight relies largely on the principle of
public access to the information. Scrutiny of the forms by citizens or
another public official is deemed sufficient. Only once a complaint is
lodged are registrars entitled to request an investigation. Without an
official complaint, there is little justifiable reason or incentive for
registrars to check member’s interests, even when they suspect
wrongdoing. Registrars are not expected to actively investigate whether
conflicts exist among their members through scrutiny of disclosure
forms. Disclosures are taken at face value as correct until someone
suggests otherwise.
While the media and journalists play a vital role in holding elected
members accountable, they face the same ‘access to information’
constraints as that of the public. There are large-scale differences
across government institutions in the ability of citizens to access
disclosure records. It seems that mandating public disclosure by law is
no guarantee that the public can access this information. Often,
requests for information are met with suspicion or resistance. Even when
access is granted, records are not always up to date. Secret
disclosure does little for accountability and the detection of
conflicts of interest. A far greater commitment on the part of
government to transparency and access is necessary if the credibility
of the disclosure regime is to be enhanced.
Finally, even where regulations exist they occasionally provide
loopholes. The current situation of gift-giving to elected officials is
a case in point. Although regulations require public disclosure of
gifts above a certain value it imposes no limits or threshold on the
value of accepted gifts. So, while it may well be ethically dubious for
elected officials to accept a Mercedes Benz from a private entity it
remains perfectly legal. Surely the acceptance of expensive, luxury
gifts, however innocent or well intentioned, should be off-limits
precisely because it puts unfair pressures on our public officials and
raises unnecessary questions about the integrity of that individual.
Where to from here? South Africans should push for national debates
on ethical conduct in public life, by asking the following questions.
What can citizens expect from their elected and non-elected officials?
What constitutes ethical and fair conduct? Despite the tug and pull of
conflicting interests, should the elusive ‘public interest’ always
prevail? Over and beyond the enrichment of their loved ones, or
themselves, public officials can also step up to the cause by
revisiting and revising existing ethics regulations.
