Fighting Corruption through Civic Engagement
South Africa is grappling with how to fight corruption effectively: What can be done to balance the principles of transparency and accountability against the public official’s right to privacy and freedom to pursue economic prosperity?
Collette Schulz Herzenberg,
Senior Researcher and Jamy Felton, intern, Corruption and Governance Programme, ISS Cape Town Office
In early December various stakeholders under the banner of the
National Anti Corruption Forum meet once again to debate and agree on an action
plan that will lead the fight against corruption in South Africa during 2012.
This event presents a brief but important opportunity for civil society to
articulate clear and concise demands for policy changes. Civil society can play a unique and key role
in fighting corruption by identifying problems, formulating strategies and
through monitoring and accountably.
But where to start – and what to prioritise? The scourge of
corruption in South Africa is multifaceted and the solutions are likely to be
equally complex. The new Public Sector Management Integrity Framework, a
welcome initiative from the Department of Public Service and Administration (DPSA),
can provide a useful platform for civil society to build consensus and set the
tone and content for a meaningful engagement.
The draft framework promises progress on several fronts: All public
officials will not be allowed to accept or solicit gifts and other in-kind
benefits, which potentially provide ambiguous methods of influencing outcomes.
Public servants will be restricted from performing remunerative work outside
the Public Service. Likewise those with outside business interests will be
restricted from doing business with government. ‘Cooling off periods’ will be
applied to all officials participating in procurement activities to minimise
and manage ‘javelin throwing’. And finally, currently implemented only at
senior manager level, the financial disclosure framework will be extended to
all public servants.
These measures, if implemented successfully, should go some way to
detecting and managing conflicts of interest when they arise among officials in
the public sector.
Yet, potential gaps in the integrity framework for elected
representatives will continue to provide unfair advantage for some in public
positions. Consider the advantages that family members of politician’s have in
attaining opportunities for financial gain and the lack of oversight and
scrutiny thereof. Recently, political parties have called for an investigation
into the business relations of the President’s family and friends, referred to
as ‘Zuma Inc’.
Indeed, questions are being raised at all levels of government
regarding the potential for enrichment of public officials’ family and friends.
In October 2011 the, Deputy Auditor-General Kimi Makwetu reported to Parliament
that ‘irregular expenditure often went hand in hand with flawed procurement,
which in turn was often a case of state officials or close family securing
tenders’.
The new Framework has
attempted to address the challenge by requiring in future all state employees
whose spouse, partner, business associate or close family member stand to
acquire direct benefits from a contract concluded with their department to
disclose details to their ethics officer and withdraw from participating in any
processes to do with the contract. This stipulation only relates to the state
employees particular department however, and misses potential conflicts of
interest that may arise if close associates of employees strike lucrative deals
with other departments within which the employee has links. Moreover, the
requirement somewhat unrealistically places the onus on the employee to detect
conflicts of interest, and approach their respective ethics officer to
disclose.
Among elected politicians’ the problem is equally difficult. The
financial disclosure framework for public representatives places family and
spousal interests in the confidential section of the disclosure record, far
from public scrutiny. The public is not allowed to gain access to this
information, and without systematic internal monitoring and oversight within
legislatures, it is unlikely that these potential conflicts of interests ever
get detected. Of course, a simple remedy to this problem is to deem the entire
disclosure record public, as many countries do.
One of the reasons why spousal and family interests are kept
confidential is to protect their privacy. South Africa must still grapple with
the age-old trade off that characterises public life: that of balancing the
public officials’ right to privacy and to pursue economic activity against the
principals of transparency and accountability. South Africa’s Constitution
recognises in Section 22 of the Bill of Rights that ‘every citizen has the
right to choose their trade, occupation or profession freely’. In addition, the
United Nations International Covenant on Economic, Social and Cultural Rights asserts
that ‘all peoples have the right of self-determination’ and that ‘by virtue of
that right, they freely determine their political status and freely pursue
their economic, social and cultural development’ (Part 1, Article 1). In a
country like South Africa where policy also attempts to right the economic
injustices of the past, business and financial involvement is encouraged. Thus
in public life the problem is not whether people earn money, but rather the way
in which they acquire this money.
What can be done to balance the principles of transparency and
accountability against the public official’s right to privacy and freedom to
pursue economic prosperity? One way to address the conundrum is to provide a
framework within which public servants and elected representatives can pursue
their private and public interests in an ethical manner. This will require far
greater investment in existing oversight laws and mechanisms than is currently
the case. Oversight mechanisms in Parliaments should be further strengthened
through the employment of integrity or ethics commissioners who have the power
to view and investigate the confidential sections of financial disclosure forms.
Sanctions and punitive measures for those who willingly subvert the law must
become commonplace. Those tasked with oversight of the ethical conduct of
public officials must also believe that they can initiate investigations and
enforce the law with the support of their respective institutions.
Scrutinising the behaviour of public officials is only one part of
the solution. Civil society must also advocate far greater oversight of state
procurement and tendering procedures, where government contracts are awarded to
private businesses. The Preferential Procurement Policy Framework Act outlines
the preference point system, which stipulates various categories that includes
whether the bidder is a Historically Disadvantaged Person (HDI), the price, and
the costs for the sale and letting of assets. The general weakness of the
points system is that while it appears to include a range of mechanisms to
detect dubious practises such as ‘tenderpreneurs’ gaining tenders unfairly, or family
members securing contracts based on family connections or insider information
provided by relatives, internal departmental implementation and enforcement is
severely lacking. The regulations that govern the supply chain management
process (such as the Public Finance Management Act, 1999 and Municipal Finance
Management Act, 2003) provide clear guidelines and stipulations, yet the onus
is on departments themselves to self-scrutinise their behaviour in this regard.
The tendering process needs more public exposure – only through transparent
processes and outcomes will departments feel compelled to account for, and be
able to justify their procurement decisions.
Successful outcomes from civic engagement at the National
Anti-Corruption Forum rely on structured and coherent demands. With only weeks
left, civil society organisations will want to focus on identifying key issues
for discussion, use the opportunity to engage the DPSA on the new Public Sector
Management Integrity Framework, and
ensure that their demands are articulated successfully to the stakeholders from
business and the public sector.
