OPINION: In the interests of full disclosure

Nov. 5, 2015 (4 years, 8 months ago)

By Judith February.

It feels a little like the pot calling the kettle black.

This past week the African National Congress (ANC) was very eager to point out that certain Democratic Alliance (DA) MPs, including leader Mmusi Maimane, had failed to fully declare their interests in Parliament’s register of financial interests. Of course, we know that the President himself has often missed the boat on declaring his interests and when he has, it has been such a complicated process that Jacob Zuma was forced to secure the services of his personal lawyer, Michael Hulley, to shed further light.

But, be that as it may, two wrongs don’t make a right and the ANC is perfectly within its rights to point out DA hypocrisy. After all, the DA has created its platform of clean, open and accountable governance. Its mantra is that where it governs or will govern in the future, it will take a ‘zero tolerance’ approach on matters of corruption and conflicts of interest.

Failing to declare one’s financial interests is not necessarily done to hide corruption, of course, but it is done to avoid conflicts of interest and to provide information so that citizens are aware should there be a buying of influence.

The failure to disclose relating to Maimane and other MPs relates to the contestation for the party’s leadership earlier this year. Then the DA’s Wilmot James challenged Maimane to make public donations received for his campaign. Of course, South Africa has no legislation regulating private funding to political parties and so James was in fact challenging Maimane in a legal lacuna. Yet, Maimane was still obliged to disclose the benefit in the parliamentary register.

The DA has now said that Maimane’s failure to disclose was an ‘oversight’ which has since been corrected. One wonders whether it would have been corrected had the matter not found its way into the media?

But this incident provides a timely reminder of the Code of Ethics and what its actual purpose is.

When the code 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”. And so when the code was initially conceived its purpose was preventative rather than punitive should there have been non-disclosure of financial interests.

Under the careful stewardship of former ethics committee chair, Ben Turok, the code was over-hauled and the revised version published in March 2014. In terms of the new code all members of Parliament must abstain from accepting rewards, gifts or benefit from a person that in anyway may result in a conflict of financial or business interest for the member, their immediate family or business partners, or that would otherwise be considered as corrupt or improper.

The codes of ethics for both MPs and the executive clearly envisage that elected representatives not “expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests” nor use their public positions for private gain.

Over the years there have been several instances involving breaches of the Code of Ethics and yet, the penalties seemed somewhat inadequate. These ranged from a reprimand, a fine not exceeding 30 days’ salary, a reduction of salary or allowances for a period not exceeding 15 days, or the suspension of privileges for 15 days.

In 2011 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.

Former communications minister Dina Pule, who committed egregious conduct involving dishonesty and corruption, was simply fined a month’s salary and 15 days’ suspension of privileges.

The code also forbids members from engaging in private business activities, where their involvement in such activity may result in members misusing information unknown to the public to maximise personal gain. In the interests of transparency and openness, the code makes it compulsory for members to disclose any personal, family or business partner’s financial interest, in any matter that is under consideration by a parliamentary committee of which the relevant member is involved in.

The code further instructs members “to disclose any form of personal interest when members makes representations as a member to a Cabinet member or any organ of State” and may not request compensation, reward or benefit for themselves, immediate family members or business partners for making representations as a member on behalf of any person or body.

In contrast to the previous code, the new code explicitly prohibits members and their immediate family or business partners from acquiring benefits through 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 after the opening of Parliament or appointment of new members, from 30 to 60 days and an increase in the value of gifts that needs disclosure from R350 to R1,500.

There was no significant change in the different categories of financial interests that members are compelled to disclose. However, some of the new regulations include that members must provide details on long-term loans and mortgage bonds against their properties and public contracts and may only undertake employment external to Parliament when such work has been commissioned by the political party of the member, on the condition that the disclosure of external employment is accompanied by written approval from the chief whip of the relevant political party.

One can’t help but wonder whether the president has disclosed the bond he says he has over his Nkandla property?

The ANC has now said it will report the relevant DA MPs to the joint ethics committee.

It is crucial that all parties, even - and perhaps especially - the opposition adhere to the rules of disclosure. In these days of rampant conflicts of interest and a local government election coming up, all MPs would do well to ensure that they are not found wanting when it comes to full financial disclosure.

It simply doesn’t look good - and the DA knows it.

This article first appeared in Eyewitness News dated 5 November 2015.


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