Executive Members' Ethics Act review as part of remedial action of State of Capture Report

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Justice and Correctional Services

05 September 2017
Chairperson: Dr M Motshekga (ANC)
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Meeting Summary

The meeting dealt with the remedial action contained in paragraph 8.9 of the Public Protector’s State of Capture Report. This required Parliament to review the Executive Members Ethics Act to provide for increased accountability and transparency in conflicts of interest pertaining to the Executive. The Speaker of Parliament had referred the matter to the Committee to implement the remedial action within 180 days of the Report’s publication with was released to the public on 2 November after its completion on 14 October 2016.
 
The Committee Content Advisor briefed the Committee on the broad purposes of the Executive Members Ethics Act and its provisions. Various gaps in accountability had been identified in the State of Capture Report  and other Reports by the Public Protector. The Act applies to all members of the National and Provincial Executive. The Act does not apply to the Executive at the local sphere of government.
 
Various challenges with the Act included: inability of the public to easily access the Register of Executive Interests, the present framework of the Act relying on Executive self-regulation has been ineffective and there is no independent office or institution to oversee conflicts of interest pertaining to the President. There are no provisions for appropriate sanctions when Executive members breach the Act’s provisions. The Act fails to provide adequately for the protection of whistleblowers.

The Executive had acknowledged the need to reform the Act. The Content Advisor recommended obtaining a legal opinion to determine if the recent amendments to the Protected Disclosures Act adequately address whistleblowing concerns.
 
The Act is currently implemented as a broad framework. The finer details of the Act are supposed to be fleshed out in the Executive Ethics Code promulgated by the President after consultation with Parliament.
 
In 2010 Cabinet had drafted a Bill to amend the Act and had published the draft Bill for public comment. That Bill however was not submitted to Parliament. Members of Parliament's Joint Committee on Ethics had however attended an ethics workshop in 2013 to look into this issue.

The Content Advisor noted that the current definition of “family member” in the Act is too narrow. She recommended expanding the definition to include extended family members and siblings. This is a similar approach in the legislation regulating conflict of interests for judges. She recommended that the review process consider giving Parliament and/or the public at large greater involvement in the drafting of the Executive Ethics Code, which is published in terms of the Act. Comparative legislation from foreign countries, international best practice on conventions and the legislation governing judicial officers could be of assistance in providing a framework for the Committee to consider. A briefing from the Judicial Services Commission could be of assistance to the Committee in creating that benchmark for its review.
 
In the discussion, some Members felt the briefing did not properly address the procedure the Committee should follow in implementing the review. Other Members disagreed saying it was necessary to have an explanation of the framework and background to the Act first to properly engage in the review process.
 
Members suggested further briefings from the Executive, the Presidency, Parliament and the Public Protector were required to ascertain the extent of the relevant considerations involved in the review. It was recommended that the Public Projector be approached to request a review of the 180 day timeline. The Chairperson undertook to write to her Office.
 
A Member asked if the State of Capture Report, being a sub judice matter, precluded the Committee from considering it as the President has taken the State of Capture Report on review. It was pointed out that noted the matter was not sub judice as the President’s judicial review pertained to a different aspect of the Report. In response to a concern about the status of the current Public Protector’s remedial action to amend the Constitution to change the Reserve Bank mandate, the Chairperson noted the Gauteng High Court had set aside that remedial action.
 
Members commented that it was unfortunate that this matter is only being considered now as the Public Protector had raised the review of the Executive Ethics Act as far back as 2010. The Committee agreed that this matter be dealt with urgently as it was not conducive to public confidence in the legislature that this process had not been embarked upon long ago. The Committee agreed that a dossier of all relevant information on the review of the Act and the previous draft Bill should be compiled and given to Members. It was noted this process would take some time to finalise but it was important to expedite the remedial action on the legislative review.

Meeting report

The meeting considered the referral by the National Assembly which required the Committee to review the Executive Members Act. This was addressing the remedial action contained in Recommendation 8.9 of the Public Protector’s State of Capture Report of October 2016. The Public Protector’s remedial action required Parliament to specifically review the Act’s provisions dealing with integrity and avoiding conflict of interest within 180 days of the Report’s publication. Before engaging in the review, the Committee had taken a decision to receive a briefing from the Committee Content Advisor outlining the legal framework of the Act.
 
Adv G Breytenbach (DA) wanted an explanation on why the Committee had taken so long to begin the process of reviewing the legislation as required by the Public Protector’s remedial action.

The Chairperson replied there was nothing which could be done at this point about the delay in implementing the remedial action. If the Member had further concerns about the delay those could be dealt with after the presentation had been concluded.
 
Ms C Pilane-Majake (ANC) requested clarification about the contents of the presentation.

The Chairperson reiterated the purpose of the presentation was to obtain a legal briefing on the review of the Executive Members Ethics Act as required by the Public Protector’s Report. He requested that further questions be held over until after the presentation.
 
Presentation: Review of Executive Members Ethics Act
Ms Christine Silkstone, Committee Content Advisor , focused on the Executive Members Ethics Act and the Code published in terms of the Act. Reference was made to the State of Capture Report and other Reports of the Public Protector which raised concerns about the Act in its current form. The various gaps within the Act, as identified by the Public Protector, were examined and several suggestions were made on how to remedy those gaps as required by the remedial action. Ms Silkstone noted that these were simply suggestions and the Committee would in no way be bound to follow her suggestions.
 
The State of Capture Report required Parliament, within 180 days, to review the Executive Members Ethics Act. The remedial action required the Act to be reviewed to contain better guidance on avoiding conflict of interest, clearly define the responsibilities of those in authority regarding whistleblowers and whistleblowing and to draft a code of ethical conduct applying to all employees of the state.
 
The contents of the State of Capture Report were not dealt with in detail except aspects relevant to the Committee agenda. The Report dealt with an allegation that President Zuma had violated section 3.1 of the Executive Ethics Code that deals with conflicts of interest. A second allegation dealt with the alleged bribery attempt of both Ms Vytjie Mentor and Mr Mcebisi Jonas by the Gupta family, which constitutes a violation of the Prevention and Combating of Corrupt Activities Act. The Protected Disclosures Act was considered in the Report. Ms Silkstone was unsure whether the Report had considered the subsequent amendments to Protected Disclosures Act made by this Committee. The Report stated the allegations of bribery lodged by Mr Jonas had not been investigated. This could amount to an infringement of section 2(3)(c) of the Executive Ethics Code. This finding dealt with the Protected Disclosures Act which requires a proper response by law enforcement authorities to allegations of alleged wrongdoing or criminal activity by a whistleblower.
 
Ms Silkstone said the Executive Ethics Act was promulgated in 1996 to give effect to section 96 of the Constitution which requires legislation to be passed to regulate the ethical conduct of the national and provincial spheres of government. The Act applies to the President, all members of Cabinet, Premiers and provincial Members of the Executive Council (MECs). The Act requires the President, after consultation with Parliament, to promulgate a national code of ethics to regulate the conduct of those officials. The Act does not apply to local government.
 
Section 2(c) provides for a disclosure mechanism. Section (3)(c) empowers the Public Protector to investigate a complaint about a breach of the ethical duties imposed by the Act and/or Code. Once a complaint has been lodged, the Public Protector is then required to submit a report to the President or relevant Premier within 30 days. If the investigation is not completed within that period, then an interim report must still be provided. The President or Premier must then investigate the contents of the report and report to Parliament on action taken within 14 days.
 
The Act is a framework. This means it is not highly detailed as it was intended that the Act would be properly supplemented by the compilation and promulgation of the Executive Ethics Code. General standards are required of Executive members who must promote an “open, democratic and accountable government” in performing all their executive functions. Those standards require members to adhere to various specific ethical obligations inclusive of not wilfully misleading the legislature, the President or Premier to which they are accountable; act in a manner inconsistent with their position; expose themselves to situation which could give rise to a potential conflict of interest; or use their position to enrich themselves or improperly influence any other person.
 
Ms Pilane-Majake interjected and asked for greater clarity on the required procedure to implement the remedial action of the Public Protector and less detail on the technical details of the Act.

The Chairperson responded that it was necessary to examine the background of the Act to properly understand the procedure to implement the remedial action. He requested that Ms Silkstone be given opportunity to complete her presentation before Members made comments.
 
Ms Silkstone said section 4 deals with gifts and it prohibits Executive members from soliciting or receiving gifts from any person in return for any benefit, which constitutes an improper influence or an attempt to improperly influence that member.
 
Mr B Bongo (ANC) interjected and said the presentation was not assisting the Committee in reviewing the Act to comply with the remedial action. The presentation simply reiterated the provisions of the Code and Act which was not assisting the Committee.
 
Mr S Swart (ACDP) stated that the Committee had already taken far too long to begin reviewing the Act. As the remedial action requires a review of the Act, it was necessary for any legal briefing to properly canvass the provisions of the Act in their entirety, if that review was to fully comply with the remedial action. The current review had to be distinguished from an ordinary Bill. This is because the review was mandated in terms of a Public Protector Report and not in terms of a Bill submitted by Cabinet in the usual manner.
 
Adv Breytenbach agreed with Mr Swart. The review would not be completed in a single session. Without a proper background, the Committee would be unable to properly implement the review process.
 
Mr M Maila (ANC) agreed with Mr Bongo and Ms Pilane-Majake that the presentation was not properly assisting in providing a framework for the remedial action required to be implemented by the Committee.
 
Mr W Horne (DA) disagreed with the comments of the ANC members that the presentation was not assisting the Committee. Ms Silkstone had stated at the outset that her presentation would provide details about the actual content of the Public Protector’s various reports. The course of action the Committee should follow in implementing the review would be discussed in the presentation in due course. It was necessary to have a background to the Act to properly implement the review.
 
The Chairperson pointed out that the Committee members represent the public in the Committee and there is a great deal of public interest in this matter. It would not be conducive to the proper functioning of the Committee to be impatient about the review process. He requested the Members be patient and allow the presentation to continue. A failure to do so would create the public perception that the Committee was not properly informed for the review process. The matter had been referred to the Committee by the Speaker. All the Members had been properly informed of the form and content of the presentation. He agreed with Mr Swart that the review should take place by means of a section by section analysis. Once that had been completed, it would be possible to identify the gaps in the legislation, as identified by the Public Protector, to engage in a proper review to fully comply with the Report’s remedial action. The Chairperson ruled that the presentation should first be completed.
 
The presentation then dealt with the Public Protector’s remedial action, as identified in the State of Capture and other Reports, pertaining to the Executive Members Ethics Act and the Executive Ethics Code. The remedial action included, but was not limited to, addressing anomalies and uncertainties in the Act and Code, the need to clarify the office or person the President should approach for permission to accept gifts and regulate potential conflicts of interest. The Report required the establishment of a separate office for the Public Protector to report to when dealing with allegations involving the President. This is because the Code and Act envisage a form of Executive self-regulation. This creates various absurdities as the Act currently stands where the President, as the implicated party, accounts to himself about an alleged infringement of the Act or Code. Amendments would also be required to provide a system of appropriate sanctions should the Code by violated. These included a sanction of a capped fine and/or reduction of salary as an interim measure pending review of the Act and Code.
 
Ms Silkstone looked at Cabinet’s response to the previous Reports of the Public Protector. The Executive has acknowledged the need to comprehensively review both the Act and the Code. Whilst a draft Bill was published for public comment by the Justice Department, the Bill was never submitted to Parliament for consideration.
 
There are various shortcomings in the Act and Code. In particular, the Code has technical errors and more substantively the Act envisages Executive self-regulation which has not ensured adequate oversight over the Executive. A second problem is that Parliament’s role in developing the Ethics Code is merely consultative as the President brings the code into force by proclamation. Parliament therefore only has a consultative role. The Act would have to be amended to provide Parliament with greater authority in developing the Code.
 
The Act is deficient in ensuring oversight of the President. This is because the President is both subject to the Act and required to oversee and adjudicate the conduct of Executive members. This gives rise to various anomalies in the Act. The amendments should therefore address: whom the Public Protector submits a Report to in the case of a conflict of interest involving the President, how the standards apply in the case of the President and what should happen to the President in the case of such a conflict arising. A process should be developed to deal with the approach specifically when it applies to the President.
 
The current definition of “family member” is too narrow. It should be expanded to include other persons such as dependents, persons living in the household and other familial relationships. This is similar to the position for judges and considering other such legislation could be of assistance.
 
Public access is a challenge. The Register of Executive Member’s Interests is only accessible during secretary hours requiring a personal visit to the Office of the President or Premier. Consideration should be given to making the Register more accessible. This could be done by publishing the Register on a government website and requiring an Annual Report. A briefing from the Cabinet secretary would be beneficial in assisting the Committee to properly establish the current administration of the Register.
 
The Public Protector was particularly concerned about the protection afforded to whistleblowers. A legal opinion could be requested to determine if the amended Public Disclosures Act properly addresses this concern.
 
The Public Protector Report recommended the establishment of a transversal code. In 2013, the Parliamentary Joint Committee on Ethics and Members’ Interests had hosted a workshop that agreed to the need to draft a universal ethics code binding all officials employed in the public sector.
 
On the way forward, Ms Silkstone suggested that the Committee request briefings from various institutions inclusive of the Presidency, Parliament and the Judicial Services Commission on the implementation of their Code of Ethics, as part of a benchmarking exercise. There could be briefings from the Public Protector on the previous findings. There could be calls for written submissions and public hearings as well as an examination of international benchmarks that could culminate in a potential Committee Bill.
 
Discussion
The Chairperson noted the matter went back as far as 2010. It had been before Parliament and should have already been finalised. It is unfortunate the Public Protector had to order this review in terms of her remedial action for this matter to be solved. It now had to be resolved under conditions of urgency. This gave a negative public perception of Parliament which is exacerbated given the fact that the remedial action occurs now in the context of the State of Capture Report. The Executive had engaged with this matter. The Committee should access those reports to see what progress has thus far been made. Decisive action would be needed in expeditiously resolving this matter.
 
Ms M Mothapo (ANC) raised a point of clarity. The President is currently undertaking a judicial review of the Public Protector’s State of Capture Report. Does this not then have the effect that the Committee cannot engage in the review process until that matter had been finalised? This means the Report would be subject to the sub judice rule and the Committee could not embark on the review until that litigation had been finalised.
 
The Chairperson responded that the President was undertaking a judicial review of paragraph 8.4 of the State of Capture Report. The Committee’s review pertained to paragraph 8.9 of the remedial action contained in the Report. As the two issues deal with different subject matter, it means that the sub judice rule does not apply to the Committee review of the Executive Ethics Act and Code.
 
Mr Swart agreed with the Chairperson. He recommended the Committee make an application to the Public Protector to request a time extension for the review process. His repeated the comments of Ms Silkstone that the Act is currently defective as it does not adequately provide for proper process to be followed when the President himself is involved in a conflict of interest. A draft Bill had been formulated in 2010 which recommended in that situation that the President must account to the Speaker of Parliament. That draft Bill had been subject to public comment but the general response was that solution would not properly address conflict of interest where the President is the conflicted party. That draft Bill could however provide a framework which the Committee could use, should they decide to go the route of proposing a Committee Bill to implement the Public Protector’s remedial action. More information would however be required for the Committee to properly undertake the review but he was extremely concerned that the matter be finalised as quickly as possible given how long this matter had been sitting dormant in Parliament. The review would however be a continuous process which would require briefings from various institutions inclusive of the Presidency, the Speaker, Parliament, international benchmarks and potentially the National Prosecuting Authority.
 
Adv Breytenbach agreed with the suggestion of further briefings. The current legislation and code of conduct governing conflict of interest amongst Members of Parliament is available online and provides for various sanctions should MPs fail to adhere to their duty to avoid conflict of interest. That code of conduct could be helpful for the Committee to consider for comparative purposes.
 
Mr Horne stated that the Public Protector had continual complaints about the Executive and Legislature failing to implement her remedial action. He agreed with Mr Swart that the appropriate course of action would be to approach the Public Protector for an extension of the time period for the review. He agreed with Adv Breytenbach and Ms Silkstone that further briefings may be required. Those briefings should be scheduled as soon as possible to expedite the completion of this matter as a matter of urgency.
 
Mr Bongo wanted greater focus on the areas the Committee should consider as required by paragraph 8.9 of the State of Capture Report. Whilst it could be beneficial to table a Committee Bill it would be necessary for the Committee to focus their inquiry to ensure the review process is a meaningful one. A briefing from the Public Protector could be required. For example, the Public Protector recently had required the Committee to amend the Constitution to alter the mandate of the Reserve Bank. He asked what the status of her remedial action was on that matter.
 
The Chairperson responded that the Public Protector’s remedial action to change the Reserve Bank mandate had been set aside by the Gauteng High Court. This means that it has no binding force and the Committee is not required to consider it.
 
Ms Pilane-Majake noted the Public Protector Report did not address what processes the Executive had embarked on to review the Executive Ethics Act and Code. According to the presentation, the Executive had embarked on a number of ethics workshops. It would be advisable for the Committee to scrutinise what the Executive had done in remedying this issue when embarking on the review process.
 
The Chairperson noted the Public Protector’s remedial action is binding on the Committee and the Committee was currently out of time in implementing the review as required. He agreed with Members that the correct way forward would be first to request an extension. A large volume of information had been collected on this matter since 2010. A dossier would be compiled for Committee members to engage on a proper review as mandated by the remedial action. It would be necessary for the Committee to scrutinise those documents as well as examine international best practice benchmarks. He recommended receiving a briefing from Parliament’s Legal Services on the matter of ethics in Parliament. The Chairperson would write to the Speaker requesting an extension from the Public Protector.
 
Mr Horne noted the Committee had no fixed programme for the following week. A number of Bills are on the agenda and public comments had been scheduled for three of them. If the Committee did not address these, it would run into serious challenges as they would not be able to finalise that work before the end of the year.
 
The Chairperson replied that the programme would be finalised shortly and sent to Members as requested.
 
Ms Breytenbach asked when the Committee would deal with the Legal Practice Bill.
 
The Chairperson replied that the Legal Practice Bill would be considered once the prioritisation had been completed and therefore she would have a response the following day.
 
The meeting was adjourned.

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