New code of ethics for MPs: the good news and the bad news

SA’s revised code of ethics is more stringent about MPs’ disclosure of financial interests, but punitive measures remain much the same

‘Parliament lies at the heart of our new democracy. The standards it keeps, or does not keep, are crucial to the wellbeing of the whole nation. Parliament should therefore not have to be dragooned into setting high standards in public life. It should willingly seek maximum openness about what public representatives do, and receive.’

These words are as true today as they were in 1996 when Kader Asmal was discussing the new code of ethics for members of parliament (MPs).

When the code of ethics was formulated in those early, heady and optimistic days post-1994, the emphasis was on building a culture of accountability and ensuring elected representatives and officials ‘did the right thing’ by disclosing their financial interests. Initially, when the code was conceived, its purpose was preventative rather than punitive.

Over the years, however, there have been several instances involving breaches of the code of ethics, and yet the penalties seemed somewhat inadequate. For instance, former communications minister, Dina Pule, was simply fined a month’s salary and 15 days’ suspension of privileges after conduct involving dishonesty and corruption.

In 2011, President Jacob Zuma himself was found not to have disclosed his financial interests as required by law. In terms of the Executive Members Ethics Act as well as the related Executive Ethics Code, all members of the cabinet must disclose all financial interests and liabilities, as well as those of their spouses and dependent children, within 60 days of assuming office. Zuma only eventually filed the declaration once the public protector found that he had been in breach.

Initially, when the code was conceived, it was preventative rather than punitive

Under the recent careful stewardship of former Ethics Committee chair, Ben Turok, the code of ethics was overhauled and the revised code was published in March. In terms of the new code, all MPs must abstain from accepting rewards, gifts or benefits that may result in a conflict of financial or business interests for them, their immediate family or business partners – or that would otherwise be considered as corrupt or improper.

While the previous code did not contain any provisions to regulate the business interests of MPs, the new code explicitly forbids members from participating in private business activities. This is an attempt to restrain members from using privileged information to maximise personal gain.

The new code acknowledges that transparency is instrumental for maintaining the legitimacy of elected representatives, since it compels them to divulge personal financial interests, those of family or business partners in any matter that is under consideration by a Parliamentary committee in which members are involved.

These amendments are critical, given that they have the potential to restore public confidence in Parliament. Of course, their effectiveness is entirely dependent on whether the code would be properly enforced.

Tender fraud has been a major issue within our political system. Where MPs are involved in fraudulent activities, it exacerbates perceptions that the state’s coffers have become a source for personal enrichment. It is welcoming to see that the new code seeks to set ground rules in an area that was largely left uncovered in the previous code.

To this end, the new code explicitly prohibits members and their immediate family or business partners from qualifying for tenders or state contracts. Some of the other amendments to the code include an extension in the time period for the disclosure of registrable interests of new members from 30 to 60 days, and an increase in the value of gifts that need to be declared from R350 to R1 500.

The new code explicitly forbids members from participating in private business activities

The Joint Committee on Ethics and Members’ Interests may consider and investigate alleged breaches to the code – either on its own or on receipt of a complaint by a third party – in relation to the contravention of the general rules, and when members deliberately or ‘grossly negligently’ mislead the registrar by providing inaccurate details.

Most of the penalties of the previous code were retained. Members found in breach of the ethical standards established by the code can be subjected to a reprimand; issued with a fine that does not exceed the value of a month's salary; face a decrease in remuneration or remittances for a period of not more than 30 days; or temporarily have some advantages and rights revoked.

While the new code gives cause for optimism, one would have expected that it would establish more stringent punitive measures. However, the new code capacitates the committee to recommend greater punitive action or penalties. On the other hand, this provision also seems to limit the committee from taking decisive action, since more rigorous penalties are subject to the approval of Parliament.

The code does not specify what such a process would entail. This raises concern whether Parliament would take firm action against members found to be in breach of the code; especially if such a member is known to have strong political connections.

It remains to be seen whether the new code will be effective in curbing the mischief of conflicts of interest that have so bedevilled South African public life. Civil society and the media will need to be vigilant in examining the Register of Members’ Interests and verifying the information supplied by MPs to further ensure that the constitutional standards of transparency and accountability are maintained.

This article was originally published by Eye Witness News.

Judith February, Senior Researcher and Wilmont Gertse, Intern, Governance, Crime and Justice division, ISS Pretoria

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