Source: ISSFighting Corruption through Civic Engagement
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.
