Code of Ethics of Cabinet & MECs

PUBLIC SERVICE AND ADMINISTRATION PORTFOLIO COMMITTEE
23 May 2000
CODE OF ETHICS OF THE CABINET AND MEMBERS OF EXECUTIVE COUNCILS

Documents Handed Out:
Draft Report on the Draft Code of Ethics of the Cabinet and Members of Executive Councils

MINUTES
The committee unanimously agreed to adopt the Report on the Draft Code of Ethics for Members of the Cabinet and Members of the Executive Councils. The Report will be tabled in Parliament on 24 May, and debated 26 May.

Appendix 1:
DRAFT Report of the Portfolio Committee on the Public Service and Administration of the Draft Code of Ethics for Members of Cabinet and Executive Councils, dated 19 May 2000.

The Portfolio Committee on Public Service and Administration, having considered the Draft Code of Ethics for Members of Cabinet and Executive Councils, referred to it, reports as follows:

A. The requirements of the Constitution
The Constitution, 1996 requires the state to be open, accountable and responsive (section 1). In terms of the doctrine of separation of powers, the legislature exercises oversight of the executive, while another branch, the judiciary, has the power to review both the laws of the legislature and administrative acts of the executive. All three branches must act in accordance with the Constitution, which is the supreme law.

In terms of the Constitution, the national Cabinet is accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions. Members of the Cabinet are further required to act on accordance with the Constitution and must provide Parliament with "full and regular reports" concerning matters under their control (section 92). Members of the Executive Council of a province are similarly accountable to the relevant legislature (section 133).

Related provisions confer powers upon the legislatures that correspond to the executive's duty of accountability. Oversight powers are conferred on the National Assembly (section 55), the National Council of Provinces (section 66) and provincial legislatures (section 114).

Within this framework of executive accountability to the legislature, the Constitution also contains provisions regarding the conduct of members of the Cabinet and Deputy Ministers (section 96), and members of the Executive Council in a province (section 136). Members of Cabinet, Deputy Ministers and Members of Executive Councils are required "to act in accordance with a code of ethics prescribed by national legislation."

By specifically proscribing certain conduct, the Constitution provides a minimum content for the envisaged code of ethics. Executive members are prohibited from -undertaking any other paid work;
-acting in a manner inconsistent with their office, or exposing themselves to any situation involving the risk of a conflict of interest between their official responsibilities and their private interests; or
-using their position or information entrusted to them, to enrich themselves or improperly benefit any other person. [Sections 96(2) and 136(2) of the Constitution]

The Constitution contains several instructions requiring Parliament to pass legislation to give effect to its provisions. For example, in February Parliament considered and passed four such Bills, two aimed at the promotion of equality (the Preferential Procurement Act, 2000 passed in terms of section 217(3) of the Constitution and the Prevention of Discrimination Act, 2000 in terms of section 9(4) ) and two that give effect to constitutionally protected rights (the Promotion of Access to Information Act, 2000 in terms of section 32(2) of the Constitution and the Promotion of Administrative Justice Act, 2000 in terms of section 33(3) ).

These four Bills were passed in terms of three-year deadlines imposed in terms of the transitional arrangements. No such deadline was in place for the passage of the Executive Members' Ethics Act, which was passed by Parliament and assented to by the President and commenced on 20 October 1998. The Act gives effect to the constitutional requirements outlined in sections 96 and 136.

B. The enabling legislation
The Executive Members' Ethics Act, 1998 is located within the context of the accountability of the executive to the legislature, and the national and provincial legislatures' power and duty of oversight of the exercise of national and provincial executive authority (sections 55(2) and 114(2) respectively). The Act permits only members of the national and provincial legislatures and the President to submit complaints for investigation (section 4(1) of the Act).

In terms of the Act, complaints are to be investigated by the Public Protector, who is required to submit a report to the President, if the complaint is against a member of the Cabinet or a Deputy Minister, or the relevant Premier, if the complaint is against the MEC of the province. The President or Premier is then obliged to report to the legislature (to Parliament if a member of Cabinet has been investigated, to the National Council of Provinces in the case of a Premier and to the legislature in the case of a Member of Executive Council). Stringent time frames and deadlines apply.

The Act requires that the code of ethics contain positive exhortations (such as the requirement of good faith) and further requires that the code contain the presciptions listed in the Constitution at sections 96(2) and 136(2). The Act also requires the disclosure of financial interests, citing the existing code for Members of Parliament as a minimum standard.

C. Reports No. 11 and 12 of the Public Protector
Two Special Reports of the Public Protector published during 1999 (No. 11, Report on the Investigation of Allegations of Nepotism in Government, RP98/1999 and No. 12, Report on the Investigation of a Public Statement made by the Premier of Mpumalanga, Mr N Mahlangu, on 22 June 1999, RP121/1999) alluded to the fact that although the enabling legislation for a code of ethics, the Executive Members Ethics Act, was in place, the code itself had not been compiled and published.

Report No.11 was tabled on 26 April 1999, after Parliament had dissolved for the June 1999 elections. The Public Protector, in addition to investigating the specific complaints referred to him, made some general observations and recommendations. He noted in his Report that a Code of Conduct for Public Servants was in place, that an Executive Members' Ethics Act was also in place, but that the code of ethics enabled by the Act and required by the Constitution had not yet been promulgated. He further noted that no general code of conduct for members of Parliament was in place, only a Code of Conduct in Regard to Financial Interests. He therefore recommended that -
-the code of ethics as envisaged in the Executive Members' Ethics Act, 1998 be promulgated "as soon as possible";
-that public office bearers and officials raise awareness of the Code of Conduct for Public Servants; and
-that the Rules Committee of Parliament develop a general code of conduct for members of Parliament.

Before Report No. 11 was formally considered by a committee of the National Assembly, Report No. 12, an "own initiative" investigation of the Public Protector in terms of section 7(1) of the Public Protector Act, was tabled. The subject of the investigation was a statement made by the Premier of Mpumalanga. The report was tabled in the National Assembly, National Council of Provinces and the Provincial Legislature of Mpumalanga. The Public Protector again bemoaned the absence of the code of ethics:

"The importance of the code of ethics being finalised and promulgated without any delay has again been emphasised by this matter. The Act seeks to ensure public accountability on the part of those holding office. Such accountability can however, only be properly enforced where there are clearly defined ethical prescripts." (Page 3 of the Report)

The Public Protector was of the view that "further delay will cause unnecessary uncertainty in the minds of those affected by the provisions of the Act as to what is expected from them and/or of them." (Ibid.) The Public Protector's Report was not well received in the Mpumalanga legislature, where members alleged that the Public Protector was on "a frolic of his own".

He responded to his detractors in the legislature in an article in the Sunday Times of 10 October 1999, entitled "Intemperance in the House Bodes Ill for the Rule of Law", drawing attention to the constitutional obligation on organs of state to assist and protect Chapter 9 institutions (section 181(2) of the Constitution, 1996).

Soon after the commencement of the second Parliament in August 1999, the Speaker referred Report No. 11 to recently constituted Portfolio Committee on Public Service and Administration. The Committee requested a special briefing on the Report by the Public Protector, which took place on 27 October 1999. The Committee had requested additional information on the measures in place to combat nepotism and on the extent to which the Public Protector's recommendations had been implemented. The report of the Committee may be found in the ATCs of 17 November 1999.

D. The Committee's findings and recommendations in respect of Report
No. 11
The Committee supported the Public Protector's call for the promulgation of the code of ethics, as required by section 2(1) of the Executive Members Ethics Act and sections 96 and 136 of the Constitution. The Committee also noted that public servants and local government elected officials were covered by codes of conduct, but that non-executive members of Parliament, Members of Provincial Legislatures and local government officials are excluded from the operation of the existing codes.

The Committee accordingly recommended that the President publish a code of ethics as envisaged in section 2 of the Executive Members' Ethics Act, 1998 by 1 June 2000. The Committee also made recommendations that the relevant authorities develop codes for non-executive Members of Parliament and Legislatures and for local government employees (pages 486-7 of the Committee's Report).

E. Parliamentary consideration of the Draft Code
The Draft Code for Members of the Cabinet and Members of Executive Councils was tabled in the National Assembly and the National Council of Provinces by the Committee of Ministers convened by the Minister of Education, Prof A K Asmal, on 13 April. The Minister opened a debate on the Draft Code in the National Council of Provinces on 16 May, which was also addressed by senior representatives of the provinces, including the Premier of Mpumalanga.

At the debate, the following points were raised by provincial delegates, amongst others:
-The Northern Cape delegate expressed his appreciation for the referral of the Draft Code to the legislatures for their consideration.
-The Western Cape delegate asked whether a Minister appointed in terms of section 91 of the Constitution would be covered by the Draft Code. He added that the NNP supported the Code, but wanted the time frames to be shorter.
-The Free State delegate said that the requirement of disclosure of financial interests should be extended to the public service.
-The Speaker of the KwaZulu-Natal Legislature raised a concern regarding the Draft Code's impact on gifts of a cultural or customary nature. He also asked whether the President and Premiers were covered by the provisions of the Code, since the Draft Code referred in places to a 'member of the Cabinet' or 'member of Executive Council' without specifically including the President or Premier, as the case may be. He also indicated that the Draft Code prescribed no sanctions for breaches of the Code, and felt that a tribunal should be established to adjudicate such matters. He also called for the establishment of a national hotline for the reporting of allegations against elected officials and public servants.
-The Premier of Mpumalanga said that professional bodies have codes of conduct and it was therefore fitting for public representatives to adopt and enforce similar codes. He added that public representatives' every word and action is closely are closely scrutinised.
-The Gauteng delegate indicated that the legislature had also drawn up a code for its members, which had recently been adopted by the legislature. The post of Integrity Commissioner had been created in the legislature to enforce the code. A 'cooling off' period had been activated for outside remunerated work currently undertaking by members.
-The Eastern Cape delegate gave the undertaking the Eastern Cape legislature would follow suit.

The Minister in his reply to the debate gave the assurance that Ministers appointed in terms of section 91 would also be covered by the Code, and that the definitional concerns of members were unwarranted. Nonetheless, he said, out of an "abundance of caution" the President and Premier could be explicitly included in the provisions.

The Speaker of the National Assembly referred the Report to the Portfolio Committee on Public Service and Administration on 9 May. The Committee was briefed by Mr Allan Taylor, Special Adviser to the Minister of Education, on 19 May. At the briefing, members of the Committee made the following remarks:
-Mr Modisenyane (ANC) pointed out that paragraphs 2.3 (d) and (i) contained the same provision and that one should be deleted.
-Mr De Beer (UDM) raised the question of sanctions to be applied in the case of a breach.
-Adv. Madasa (ACDP) said that such a code was appropriate because executive members have far more power and therefore opportunities to abuse that power.
-Mr Sithole (ANC) said that the moral aspect of the code did not come through clearly enough. He and Mr Mfundisi (UCDP) inquired regarding the distinction between a code of ethics and a code of conduct.
-Mr Da Camara (DP) asked whether the term "inconsistent" was not too vague.
-Several members were of the view that such a code should apply to senior civil servants as well.

F. Committee's observations
· The Committee congratulates Minister Asmal and the Committee of Ministers on the work it has done in developing the Draft Code. The Committee is also cognisant that the tabling of the Draft Code on 13 April is demonstrative of a willingness on the part of the executive to be bound by and to act in accordance with resolutions of the legislature - in this instance a resolution of the National Assembly in respect of the promulgation of the code by 1 June 2000 - and accordingly commends the executive for the spirit in which it has complied with the Assembly's resolution.

· It is the view of the Committee that the Draft Code is in compliance with and gives full effect to the provisions of sections 96 and 136 of the Constitution, 1996 and the Executive Members Ethics Act, 1998. The Committee is however of the view that Parliament, specifically the Joint Subcommittee on Ethics and Members' Interests, should review both the enabling legislation and the code one year after the promulgation of the code in the Government Gazette.

· Such a review by the Joint Subcommittee might incorporate the following issues:
-the number and nature of complaints submitted by members of the legislatures;
-the efficacy of the procedures provided for in the Act and the Code;
any technical problems which may have arisen;
-an evaluation of the manner in which the relevant legislatures have dealt with the reports of the Public Protector investigating such complaints; and
-any other matter that the Joint Subcommittee sees fit to incorporate.

· The Committee is further of the view that the Code should have the title and name provided for in paragraph 8.4 of the Draft Code, that is the "Executive Ethics Code", since the working title "Draft Code for Members of the Cabinet and Members of Executive Councils" does not expressly include Deputy Ministers, who are required to be subject to the Code in terms of the Constitution, and are in fact subject to it in terms of the definitions contained in the Draft Code.

· The Committee believes that it is important for there to be a greater awareness of the provisions of the Code and the procedures by which the conduct of executive members may be brought under the scrutiny of the relevant legislature. It therefore believes that Parliament should consider producing an information pamphlet on executive members' accountability for their conduct, including the kinds of sanctions that may be imposed, as this was an issue of concern for members in both Houses.

· The Committee remains of the view, expressed in its Report on Report No. 11 of the Public Protector, that the application of the Code be extended to all Members of Parliament, with such modifications as may be appropriate, and that such Code be adopted by the Joint Rules Committee of Parliament, and that the application of the Code be likewise extended by the appropriate structures in the legislatures to all Members of the Provincial Legislatures.

· The Committee notes further that it has already made a recommendation in respect of the development by the provincial and local government Minmec of a Code of Conduct for Local Government employees by 1 January 2001.

· The Committee supports the extension of a requirement of disclosure of financial interests to senior public servants and notes the Department of Public Service and Administration (DPSA) and the Public Service Commission (PSC) are working on the introduction of an assets register for senior civil servants.

G. Recommendations
The Committee therefore recommends -
· That the National Assembly endorses the Draft Code tabled by the Committee of Ministers;

· That the Joint Rules Subcommittee on Ethics and Members' Interests conduct a review as outlined above one year after the promulgation of the Draft Code;

· That Parliament, specifically the Joint Rules Subcommittee on Ethics and Members' Interests, assume responsibility for the production of an information pamphlet for the general public on the ways in which the public can hold executive members accountable for their conduct, and the kinds of sanctions which may be applied by the relevant executive head and the relevant legislature; and

· That Parliament extend the application of the Code to all Members of Parliament, with such modifications as may be appropriate, and that such Code be adopted by the Joint Rules Committee of Parliament by the end of the year;

· That Provincial Legislatures, through the appropriate structures in those legislatures, similarly extend the application of the Code to all Members of the Provincial Legislatures, with such modifications as may be appropriate, by the end of the year;

· That a Code of Conduct for Local Government employees be put in place by 1 January 2001, in accordance with the earlier recommendation of the Committee in this regard; and

· That DPSA and the PSC report to the Committee on progress made in respect of the development of an assets register for senior civil servants in the third quarter of 2000.