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AD HOC JOINT COMMITTEE ON THE EXECUTIVE MEMBERS' ETHICS BILL
28 August 1998
EXECUTIVE MEMBERS' ETHICS BILL: DISCUSSION
Documents handed out
Executive Members Ethics Bill [B64-98] access from http://www.polity.org.za/govdocs/bills/1998
Submission on the Executive Members' Ethics Bill by Idasa (see Appendix)
Richard Calland from Idasa made an oral submission (written submission attached hereto). The President's Legal Advisor, Fink Haysom, was present and said that he supported most of the Idasa proposals. The bill would be amended accordingly and presented on 4 September for final approval by the committee.
The only new point that emerged from the discussion concerned the extent of the duty to disclose and how that might cover the Premiers and the MECs (who, unlike the national assembly MPs and permanant delegates to the NCOP, are not covered by any provincial code). It was suggested by Calland and accepted by Haysom that one way would be to say that the Code should require financial disclosure by all people covered (ie including Premiers and MECs) at least as great as that required of national assembly MPs.
The following report emanated from this meeting and appeared in the Announcements, Tablings and Committee Reports , 28 August 1998:
Report of the Ad hoc Joint Committee on Executive Members' Ethics Bill on the Executive Members' Ethics Bill [B 64-98] (National Assembly -sec 75), dated 28 August 1998, as follows:
The Ad hoc Joint Committee on Executive Members' Ethics Bill. having considered the subject of the Executive Members' Ethics Bill [B 64-98] (National Assembly-sec 75), referred to it, reports that it has not been able to complete its deliberations thereon, for the following reasons:
1. The need for further public consultation.
2. The lack of opportunity for parties to consult within their caucuses and with the provinces.
The Committee therefore requires an extension of the deadline specified in the respective Resolutions of the National Assembly and the National Council of Provinces, dated 13 August 1998, until 4 September 1998, to enable the Committee to conclude its deliberations on the Bill.
Appendix: Submission on the Executive Members' Ethics Bill by Idasa
The Executive Members’ Ethics Bill: submission from Idasa
1. Idasa welcomes the Bill as a further piece in the complex jigsaw that it is necessary to construct in the fight against corruption. However, there are one or two points upon which we invite further consideration and amendment.
2. The Substance of the Code
The Bill has been introduced as ‘enabling legislation’. We accept that, as the Memorandum to the Bill states, section 239 of the Constitution defines "national legislation" to include "subordinate legislation made in terms of an Act of Parliament". However, it is equally clear that the "national legislation" does not have to be subordinate legislation: section 239 says it is defined to include subordinate legislation. Since the intention of sections 96(1) and 136(1) is that the national legislation should prescribe the Code of Ethics we venture to suggest that it would be preferable for the prescription to be contained in an Act of Parliament rather than in regulations for the following reasons:
it will give the Code greater strength
it will give the Code greater public credibility
it will make the Code more accessible
it will give parliament a greater role in the range, scope and core substance of the Code.
2.2 For the avoidance of doubt, we wish to make it clear that we do not contend that the Code itself should be in the Act of Parliament, but that a strong and clear guiding framework for the Code should be.
2.3 In a sense, the Bill – despite the claim that it is merely enabling legislation – lays the ground for such a framework in section 2(3). But, the very useful and sensible ideas set out in sub-section 2(3)(a) are not prescriptive because of the use of the word "may" at the beginning of the clause.
We suggest, therefore, that:
Sub-section 2(3) be amended to read: "The code of ethics must - …"
[It should be noted that the prescriptive part of the Bill – section 2 – merely repeats, in the case of five of the seven required provisions set out in sub-sections 2(2)(a) and 2(2)(b), the constraints imposed by sections 96(2) and 136(2) of the Constitution. The other two ‘new’ elements – sub-sections 2(2)(a)(I) and 2(2)(b)(v) appear to be two sides of the same coin and are directed towards protecting the government rather than the people].
Further, the concept that has underpinned the MPs’ Code of Conduct and its system of a Registrar of Members’ (Financial) Interests, namely, that the transparency imposed by the publication of interests defends accountability against the threat of potential conflicts of interest, is absent here: the proposal is to disclose to an official in the office of the President and not to the public. In the case of Cabinet Ministers and Deputy Ministers this is of no consequence since they are required to make public disclosures because they are Members of Parliament and are therefore covered by the MPs’ Code of Conduct, but in the case of the President, the Premiers and MECs this is not the case.
Hence, it is suggested that section 2(3) be further amended to cover the both the President and, for the time being at least and until the provinces catch up with the national legislature, the Premiers and MPLs.
3. The Role of Parliament
Having taken the lead with the creation of the system of disclosure established by the Register of Members’ Interests, it is, we submit, appropriate for National Parliament to be involved in the operation of this new Code for the following additional reasons:
Parliament’s involvement, in the form of the current Ethics committee or an appropriate new committee, will ensure greater transparency in the process
Members of the Cabinet are accountable collectively and individually to Parliament (section 92 of the Constitution) and, again,
this will increase the public credibility of the Code, for there is a danger that the proposed system will perceived to be both secretive and self-serving.
Accordingly, the Bill should be amended to provide for the Code of Executive Ethics to be governed, if not administered, by Parliament.
The proposal apparently limiting complaints to those coming from the President, an MP, a permanent delegate to the NCOP, a Premier or an MPL makes little sense. If the purpose is to deepen the culture of accountability and to enhance public accountability surely members of the public, including civil servants, should be entitled to make complaints. In any case, given the Public Protector’s clear statutory remit to investigate complaints of maladministration and that such complaints may come from the public, how can it be said that a breach of this new code would not constitute an act of maladministration? The Bill should, we submit, be amended accordingly.
Program Manager: PIMS
Idasa’s Political Information & Monitoring Service
27 August 1998
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