Ethics: Roles of Public Protector, Auditor-General

Ethics and Members' Interest

05 June 2013
Chairperson: Mr L Mashile (ANC) and Prof B Turok (ANC)
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Meeting Summary

The Committee participated in a seminar on ethics, hearing presentations from the Office of the Public Protector and the Auditor-General, as well as a key note address on the importance of ethics, from the Chairperson of the NCOP. He stressed the importance of input from Chapter 9 and 10 institutions, who performed work crucial to the work of the Joint Committee on Ethics. He noted that whilst the work on ethics had started in 2009, it had continued into this Parliament and a number of gaps had been identified in the current code that needed to be addressed. The code as currently applied was drawn up under specific conditions and circumstances in the transition from the painful past into a new democracy, and it should be seen as a living document. Essentially, the code should not be seen as reactive and merely in place to punish public representatives who may have transgressed, but as positive guidance to them in making decisions on appropriate conduct, and avoid compromising themselves, their families and their office.

The Auditor-General noted that his office had participated in the piloting of a self-assessment tool for ethical behaviour, a concept originally from the Netherlands. He stressed that every professional body and many institutions were governed by codes of conduct, and he also noted the importance of leadership leading by example, something that was also of prime importance for his own office. Leadership in ethics was not a one-off but people must be encouraged to behave in a way that led to consistent awareness of and promotion of the highest standards of ethics and integrity.

The Public Protector agreed fully with the remarks of the Auditor-General and expanded that it was necessary to consider what “ethical conduct” comprised, giving a quotation from the European ombudsman to the effect that it was related to “stewardship” or core values that must guide judgment of public servants in the performance of their daily tasks. She outlined the sections of the Constitution and Public Protector Act giving the mandate to her organisation, noted what her office did in terms of that Act and explained that the Public Protector was obliged to investigate any alleged breach of the Code of Ethics, on receipt of a complaint, although it had no power to initiate own investigations. Ethical lapses were considered in the light of prior and continuing conduct. She stated that service failure was one type of ethical lapse, although not all service failure was unethical, and gave some examples of cases that the Office of the Public Protector had investigated. Governance lapses and ethical lapses were also outlined. The need for a common vision and approach was highlighted, and she emphasised also the need to coordinate approaches, end the perception of impunity, give strong protection to whistle-blowers, and strengthen good governance.

Members expressed appreciation for the presentation, asked for more detail on the self-assessment Tool of the Auditor-General and whether it would also have relevance for Parliament, questioned who had the prime duty to investigate ethical conduct, and what could be done to correct the situation where so many institutions did not take action against wrongdoers within their own staff, to protect their own image. They also raised concerns about the current practices of awarding bonuses for performance of public servants despite not meeting expectations, and the apparent contradiction that Ministers had no power to hire or fire their Director-Generals.
 

Meeting report

Opening Remarks
The Chairperson welcomed Members, and noted that a pack of documents had been circulated. He expressed the hope that today’s seminar would assist Members with brainstorming the code of ethics. The Joint Committee on Ethics and Members' interests had embarked on the review of the Code of Conduct of Members of Parliament, as one of its functions, during the Third Parliament and this Parliament had continued to try to address the gaps and come up with a draft Code. The section dealing with standards and values still needed to be incorporated to conclude the work. This seminar was intended to allow Members to benefit from hearing from external experts, and it was hoped that at the conclusion, there would be more information on the ethical standards and values that should inform acceptable behaviour of public representatives. He noted, however, that this debate was not about any individuals, and stressed that this was not reviewing any current or past behaviour of any individual Member.

House Chair input
Mr C Frolick (ANC – NCOP House Chairperson) thanked the Co-Chairpersons for the invitation to the seminar. He noted the apologies from the Speaker of the NA, who was unable to attend due to other priorities, but who had asked Mr Frolick to deliver a brief input. He also noted that he had other meetings that he must attend and may need to leave early.

Mr Frolick said that the presence of Chapter 9 and 10 Institutions like the Office of the Public Protector (OPP) and the Office of the Auditor-General (AGSA) was also crucial to the work that the Joint Committee on Ethics was doing, because the Committee very often interacted with these two important institutions to get their work done. It was necessary to ask what the reason was that a particular Member would be selected from party lists to assume public office, and the answer was that there were specific responsibilities to represent the views of the electorate and the communities that they represented.

Mr Frolick said that the second important crucial point of members’ work was to make laws and participate in the law making process. Thirdly, Parliament must oversee the executive action and ensure that the executive was held accountable, and that was why it was currently in the processes of looking into budgets, and, later in the year, would have the budget review process. Those were the key tasks that would drive the work of MPs in the five year period when they were holding public office. This, of course, took place within a very dynamic environment of political life of the Member of Parliament and also of his/her private life. Across all those different spheres, questions of ethics arose. He reminded Members of recent events when conduct of members of the House of Lords in the United Kingdom had been called into question following approaches to some journalists. He was interested, on a recent visit to the United States, to see lobbyists constantly present and private sector interest groups literally following and targeting certain congressman who were supposed to represent certain views, and sometimes making quite aggressive attempts to get their viewpoints across. He was interested to see quite intimate discussions between interest groups, including legislators, in public places. Members in this country would not be immune to similar influences and approaches. The question was where they drew the line because there was still a need to be careful in not crossing the line. It was important for not only the Ethics Committee but also for the political parties to look very closely into the conduct of their members. The ANC had recently implemented the Integrity Committee, which was another mechanism to attempt to regulate the ethical conduct of its members.

Mr Frolick said that the Committee was checking where it was. The Code that currently existed and was applied by the Committee was drawn up under specific conditions, in certain circumstances emerging out of a painful past into a new democracy. Members identified at the time a need that the ethical conduct of Members needed to be verified and that rules be put down. The Constitution was a rules based document that clearly specified rules and outcomes. The Ethics Committee wanted to come up with its own code for Members, based on clear principles. It was not cast in stone and was not going to be the final answer, because the material conditions under which Members of Parliament worked continuously changed, evolved and stakeholders would react in innovative ways with the legislative process and public representatives. There was no way that the Code should be seen as merely punishing MPs or elected representatives. It must serve as a guideline for Members so that when those difficult questions and moments arrived, they could also reflect on how a certain course of conduct could possibly compromise not only their own office, but also the political party they were representing, their families, and the public’s perception, for it was important to note that any transgression, whether in South Africa or elsewhere, would give rise to certain perceptions of politicians. Particularly in a young democracy that was still in a formative stage, it was important that rules were clarified. It was realised, during the current review process, that the rules now in place did not always meet the expectations for current conditions, and where this was found, there was a need to review and identify where the gaps were, and any other challenges or transgressions of the past, to check that the code was serving its purpose and was current and relevant.

Mr Frolick concluded that these discussions and brainstorming would come up with incisive proposals The Ethics Committee was a Joint Committee of the two Houses of Parliament. Its Co-Chairpersons were elected, not appointed according to the Rules of Parliament, and although all the Members of the Joint Committee belonged to political parties, it was unique in that its work was conducted under the code. Whatever came out of the discussions should be seen as proposals to prick the moral compass of all MPs. The future products must not have support from the majority, as it was impossible to please everyone. However, firm principles would lay a sound foundation for Parliament, Members, the broader society and the South African nation.

Auditor-General input
Mr Terence Nombembe, Auditor-General, thanked the Committee for the opportunity to address the Joint Committee. He said that he would outline the experiences the Auditor General South Africa (AGSA) had, based on the practical application of ethics. Everyone in South Africa was aware that issues of ethics were regulated by very well established literature, starting from various codes of conduct internationally. Every professional body, including the accounting professions, had established codes of practice and codes of conduct, both locally and internationally. Within government there were also clearly defined practices around ethics and integrity.

It was critical to note that all codes or practices, no matter at whom they were directed, were intended as guidelines and had minimum requirements. Adherence to them depended, to a large extent, on the willingness of the parties to do the right thing. The word “integrity” was always related to the issues of ethics. There could be no ethics without acting with integrity. The biggest challenge depended on the willingness of the leadership to do the right thing, because if direction did not come from this level and the right tone was not set, nothing would be taken seriously by others. He was satisfied to see the context of these discussions, and was satisfied that the right approach was being taken to lead by example on good conduct and integrity.

In addition to leading by example, there should be continuous practice of encouraging continuously good and consistent behaviour. That was something that was particularly strongly punted in the audit offices. Not only was this part of the code of conduct, but was included in the strategic priorities of the AGSA, and it was of course necessary for AGSA to lead by example because unless the Office of the Auditor-General was itself above reproach and maintained the highest level of public integrity, it could not comment on the rest of government. It was difficult to drive the compliance aspect of the code of conduct.  It was easy enough to fill in forms, provide submissions and do the necessary administration around regulatory compliance but it was difficult to determine how honest was the intention behind all of this. The AGSA was privileged to have piloted a programme led by colleagues from the Netherlands, who were looking l to a tool examining the integrity, ,ethics and positive attitude from ongoing dialogue rather than this being seen as a once-a-year occurrence, in order to get the right credentials. Instead, the continuous process became a tool, led by leadership, to create continuous dialogue amongst staff to ensure that ethics and integrity were kept alive within the organisation. Those were the structures now put in place, supported by a committee chaired by the Auditor-General, and he hoped that it would be something of which AGSA could be proud.

Discussion
Ms D Kohler-Barnard (DA) said that she was fascinated by the history and development of the self-assessment tool of the AGSA, and asked that more details be shared with the Joint Committee. She asked whether it was linked to national-based practices, whether it was created within the AGSA, and whether it could be used in Parliament, which she suspected that it could.

Dr Z Luyenge (ANC) appreciated the precise and clear presentation from Mr Nombembe. He noted that it was referring to aspects that fell both under executive and administrative tasks and said that one of the points that needed to be examined was whether it was correct for an accounting officer to under-spend and at the same time qualify for bonus, or whether bonuses should be regarded as true rewards to individuals who had truly gone the extra mile over and above what was reasonably expected of them in the performance of their contracts.

Dr Luyenge asked if there were gaps that needed to be closed in relation to the laws that governed the administration, and the relationship between the two. There was a political administrative dichotomy, because administrators would expect an interface between Minister and the Director-General, but the Minister actually had no power over a Director-General, who was appointed by the President. However, the failure of the Director General to perform properly at operational level resulted in the Minister being held accountable. If the Minister wanted to exercise power against the Director General, issues of political head and accounting officer clashed and could lead to degeneration of the whole organisation. The work that AGSA was doing, as an organisation, would ensure that the finances were used with integrity, but it was still possible for the financial issues were in order, yet people were crying out that, on the ground, there was no service delivery. He asked if AGSA would not ensure that the expected outcomes were achieved from the expenditure.

Ms M Mangena (ANC) asked whether it was possible for her to make a mistake, with the full knowledge that she was doing something wrong (sic).

Rev K Meshoe (ACDP) asked whether people doing self-reflection would also consider what their colleagues suggested were their shortcomings.

Mr S Plaatjie (COPE) said that his question was based on ethics and integrity, and he believed that there was a thin line between the two, although the AG had suggested the terms could be used interchangeable. He believed that unethical conduct was conduct that was not necessarily wrong according to the law, but was not acceptable from a public perspective. He said that integrity was, in his mind, related to the way in which a person viewed his or her conduct in relation to his own person or office. He asked what would be done if there was deliberate deviation from a set of rules that were put in place.

Ms B Ngcobo (ANC) asked whether there was any finding on unethical actions by departments, and whether there was a general trend of improvement or degradation. She also asked what advice the AG could give to the Committee, to help those departments to comply.

Dr G Koornhof (ANC) thanked the AG for the valuable input. He requested that the AG should give a copy of the tool to the Committee so it could study it and see what was applicable for Parliament. 

Mr Nombembe explained that the self-assessment Integrity Tool was a solo project that was run under the auspices of the International Organisation of Auditor-Generals. The Audit Office Management of Netherlands took a decision to volunteer to run this project at one of the congresses. In 2010, when a congress of the International Organisation was held in Johannesburg the tool was presented, endorsed, and adopted by the whole of the audit community, but before endorsing it, it was piloted as a tool applicable to the supreme audit institutions, or Auditor-General. When AGSA was part of this pilot, it had concluded that the tool could actually also be applicable beyond the supreme audit institutions and used for departments and institutions like Parliament, because it was addressing a principle of how to translate something that was used negatively into a positive around ethics and integrity. The tool could indeed be shared with Parliament, and would be applicable to it, but, as he had outlined, it was still in the experimental phases. However, he would welcome a shared approach that would highlight any shortcomings. Obviously, good facilitation would be needed, particularly to guide how people would react in the presence of their peers. He personally thought that there could be some struggles in getting it accepted by leadership, as this was something that had to be done in the open.

Public Protector input
Ms Thuli Madonsela, Public Protector: Office of the Public Protector of South Africa, congratulated Mr Nombembe for his presentation because it covered all the basics of ethics and integrity. She would simply supplement what he had outlined by explaining what her office (OPP) was doing.

Ms Madonsela applauded the initiative of the AG, which would contribute to a common vision of ethics enforcement and strengthening of synergies in the integrity sector. Similar vision informed Good Governance Week and the proposed dialogue on integrity enforcement and promotion.

It was necessary, at the outset, to ask “what is ethical conduct?” and she believed that the answer to that was well put by the European Ombudsman, P. Nikiforos Diamandouros, who stated that “In the public sector, ethics seek to address the fundamental issues relating to the civil servants’ duty to act as a “steward” for the public. In my mind, "stewardship", thus conceived, refers to the core values which should guide the judgment of public servants in the performance of their daily tasks and in their relations with the public. Most importantly, ethical considerations provide the standards of accountability that can be used to scrutinize the work of civil servants”.

In September 2012, a California Congresswoman, Laura Richardson, was named by Citizens for Responsibility and Ethics (CREW) in Washington, a government watchdog group, in its annual list of “most corrupt members of congress”. A month earlier, the US House of Representatives had voted to punish Ms Richardson for ethical misconduct after the House Ethics Committee found that she had illegally made her congressional staff work on her re-election campaign at taxpayers’ expense, and tried to block investigations into the matter. Ms Richardson accepted responsibility and agreed to pay a US$10 000 fine out of her own pocket, saying her acceptance of the punishment was “in the very best interests of [her] constituents and of the house.”

Ms Madonsela said the Public Protector’s powers were initially derived from the Constitution, since section 181 of the Constitution established the Public Protector to strengthen democracy, and section 182 conferred the powers “to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action”.

The Public Protector Act 23 of 1994 gave the Public Protector power to investigate and redress maladministration, or improper or prejudicial conduct, including abuse of power and abuse of state resources in all state affairs. It may also resolve administrative disputes or rectify any act or omission in administrative conduct through meditation, conciliation or negotiation. It should advise on appropriate remedies or employ any other expedient means and reporting. There were a number of laws with ethical implications (see attached presentation).

Ms Madonsela said that under the Executive Members’ Ethics Act, the Public Protector was the sole agency with the power to hold the President to enforcement of the Executive Members’ Ethics Act (EMEA) as section 3 of the EMEA stated that the Public Protector must investigate any alleged breach of the Code of Ethics, on receipt of a complaint. The Public Protector should report to the President in 30 days or notify President of its inability to report in 30 days. Only MPs, the President, Premier and Members of provincial legislatures might initiate investigations, but there was no own initiative or discretion for the Public Protector. Only written complaints were allowed.

Ms Madonsela said that under the Public Protector’s Act and related laws ethical lapses were to be investigated as a continuum. She said that investigations covered the period before investigations, during an investigation and after an investigation, and cited a copy of the report Free Money for All and Against the Rules. Types of ethical lapses had ranged from minor infractions or lapses in judgment to corruption. There was a need to find common ground, and she noted that sservice failure was a type of ethical lapse. In the US Code this was clearly articulated. Not all service failure, however,  was unethical. Case studies included medical malpractice (the reports on the Bara mortuary matter and Toddler's legs) and a rape victim’s case. The OPP was now called upon to deal with investigations into conduct in a Vietnamese national’s matter. Examples of governance lapses included office bearers interfering in administration.  Ethical standards were determined from laws, transversal codes of conduct and internal codes of conduct. Many ethical lapses involved abuse of power, abuse of state resources and conflict of interest; and there was a need for a transversal Code of Conduct.

Ms Madonsela concluded that there was a need for common vision and approach to content of ethics. The instances cited in Free Money for All raised many sources of concern. These included the approach and coordination of processes, the need to end the perception of impunity, the need for strong protection for whistle-blowers. Good governance initiative endeavours to strengthen synergies, included the National Good Governance Framework or Charter incorporating ethical provisions, which should be the drivers of change in the world, including the team building and training in ethics.

Discussion
Mr A Mlangeni (ANC) thanked the Public Protector for her very important input. He said that the words “ethics” and “integrity” were very important to him. He asked whose authority it was to apply ethical conduct in terms of the Constitution, when two different institution or companies had different ethical policies or rules.

Ms Kohler-Barnard asked the Public Protector to give a national vision of ethics from her perspective about an issue which had been going on for many years where entities, private companies, and even sections of Parliament had allowed staff members who had been found guilty of theft, fraud and sexual harassment to quickly leave that entity and be hired again by other companies, protecting their own name. She asked how to turn around that vicious cycle and force institutions to take social responsibility and not allow individuals who were guilty of wrongdoing to face no consequences.

Ms D Rantho (ANC) asked the Public Protector to give the Committee more insight around the issue of misconduct in Parliament, and whether she thought the enforcement and strengthening of those synergies was helping Parliament. She also questioned whether Ms Madonsela thought Parliament was on the right track, to meet the requirements of the Constitution and, if not, how it could improve.

Ms Madonsela said that it would be useful to have a workshop around integrity but she felt that a safe approach was simply to say that integrity was about trustworthiness. She referred again to the quotation from the European Ombudsman and said that, in talking about ethical conduct in Europe, he had stressed that stewardship lay at the core. In the public sector, integrity was decision making that was not influenced by self-interests, or relationships, but was based upon what was right and just.

Ms Madonsela said that the question that related to the two different ethical policies could only be answered by going back to the Constitution, although even it was not entirely clear. The OPP was using the Constitution and the international benchmarks, and she pointed out that many of the answers were found in Chapter 10, section 195 of the Constitution.

Ms Madonsela said that the question of trying to manage a brand and not to damage the organisation was a problem both in the private and public sector. It was an ethical dilemma when an organisation did not want its staff to be seen as corrupt or as having robbed clients or done anything improper, but on the other hand, those staff should be punished for their wrongdoing. She agreed that there was often a tendency to place more focus on maintaining the image of that organisation as beyond reproach, and letting the wrongdoer leave quietly.

The Chairperson thanked all presenters for their inputs. He hoped that the input from presenters would go a long way to enhance ethical conduct within Members of Parliament, departmental officials and all public representatives in carrying out their duties. He was looking forward to learning more about the self-assessment tool from the AG and hoped for a workshop in that regard.

Prof Turok also thanked the presenters, and made a presentation on behalf of the Joint Committee.

The meeting was adjourned.
 

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