Testing the Right to Access to Information - Financial Disclosure of South African Politicians` Asse

The issue of conflicts of interest in public life is the subject of daily news reports in South Africa. While it is not illegal for politicians and civil servants to own shares, directorships or receive gifts in certain instances, when does it become illegal and lead to corruption? Disclosure is one of the most effective mechanisms available for monitoring conflicts of interests in public life. It imposes obligations on public officials to publically declare their personal financial and non-financial interests. By making this information publicly available the conduct of public officials is made more transparent, thereby allowing democratic institutions and citizens to hold politicians accountable. South Africa has a fairly robust system to monitor the submission of disclosure forms by politicians at the national, provincial and local levels. In reality however, citizens’ ability to access these important statements are limited.

Published on 01 December 2009 in ISS Today

Collette Schulz Herzenberg, Senior Researcher, Corruption & Governance Programme, Cape Town Office

The issue of conflicts of interest in public life is the subject of daily news reports in South Africa. While it is not illegal for politicians and civil servants to own shares, directorships or receive gifts in certain instances, when does it become illegal and lead to corruption? Disclosure is one of the most effective mechanisms available for monitoring conflicts of interests in public life. It imposes obligations on public officials to publically declare their personal financial and non-financial interests. By making this information publicly available the conduct of public officials is made more transparent, thereby allowing democratic institutions and citizens to hold politicians accountable. South Africa has a fairly robust system to monitor the submission of disclosure forms by politicians at the national, provincial and local levels. In reality however, citizens’ ability to access these important statements are limited.

At the heart of disclosure is the principle of transparency. Through public disclosure these records act as public statements against which officials can be held to account. If the interests of elected officials remain hidden from public view after disclosure the process serves little purpose. Especially in countries like South Africa, where monitoring and oversight relies in large measure on public accessibility, secret disclosure does not do much for accountability. It is therefore imperative that citizens can regularly access these records.

A citizen’s right of access to information is enshrined in Section 32 of the Constitution. The Promotion of Access to Information Act (No. 2 of 2000) gives effect to Section 32 of the Constitution, subject to justifiable limitations. The right to access information contained in disclosure records is more specifically outlined in the Executive Members’ Ethics Act (No. 82 of 1998), the Local Government Municipal Systems Act (No. 32 of 2000) and the various Codes of Conduct across the different branches and spheres of government. South Africa’s disclosure regime is therefore strongly characterised by public access to information and in this respect is more open than many disclosure regimes globally.

But how easy is it for an ordinary citizen to access these records? The Conflicts of Interest project based at the Institute for Security Studies Cape Town office tested the right to access information held in the public declarations through the exercise of collecting disclosure records from various legislatures and executives at the three levels of government between 2004 and 2008. The initial aim of the project was to build an electronic database and webportal that would provide South Africans with easy access to a politician’s declarations of interests and assets (can be viewed at www.ipocafrica.org). However, the actual process of collecting the records led us to realize that we had a unique opportunity to investigate both the disclosure regime and test the ‘access to information’ principle.

Many of requested records were collected with the support of the various public institutions and by and large reflect their ongoing commitment to open, accountable governance as envisaged in the Constitution. However, a number of observations led us to conclude that numerous obstacles to public access remain, and they have negative implications for effective oversight and monitoring of conflicts of interests in public life. First, variation in terms of the ease of access to disclosure records is dramatic across institutions. In many instances, applications for access involved much time, resources and patience. Occasionally, requests were met with suspicion. There was also a noticeable lack of understanding among some implementing staff about the public’s right to access this information. It is also difficult to identify the correct officials to facilitate public access – a factor that can dissuade the most determined citizen. Furthermore, legislatures are much more forthcoming with their members’ forms than their executive counterparts.

Finally, when access is granted to politicians’ disclosure records, they often only reflect the previous financial years and not the latest years. The result is that it is difficult for ordinary citizens to hold their elected officials accountable and to detect conflict of interest situations using disclosure records. We concluded that, without ease of public access to information, accountability is severely diminished and the practice of disclosure becomes a hollow exercise.

South Africa has a broad approach to disclosure, in line with the Organisation for Economic Cooperation and Development’s (OECD) recommendations. You can therefore expect to find the following sections in the forms:

Evidence collated thus far suggests that many public officials in South Africa possess private business interests in the form of shares, directorships and partnerships. The most recent 2009 Auditor-General report found that among senior civil servants 21% may have potential conflicts of interest; 10% did not fully disclose their financial interests and compliance was very slow at 48%. Without full disclosure the potential for conflicts of interests among senior public officials may therefore be even higher.

The ISS analysis of disclosure records between 2004 and 2008 confirms that many elected officials also have outside financial and other interests. A closer look at the financial interests of National Parliament members shows that in 2008 45% had directorships & 59% of MP’s had shares. Among Members of Provincial Legislatures (MPL’s) between 2004 and 2008, on average, one third of MPL’s had outside interests.

A key point to note from the ISS analysis is that most of the business interests held by elected officials are not problematic. They are, in fact, mostly very ordinary and differ little from those of other citizens. This is exemplified by the common type of shares held by elected officials at national parliament. However, data also shows that many elected officials across government hold directorships and it is more difficult to assess whether these private interests are in conflict with matters of local or national public interest. Less known is the extent of private financial interest among local councillors in South Africa. Less publicised but most concerning are indications that positions of power in local councils are used for personal gain, made more disturbing when one considers that only seven per cent of the country’s budget is spent at national level, with the rest spent at provincial and local levels.