Conduct unbecoming

How the ethics committee let Yengeni off the hook.

THE DECISION BY Parliament's joint committee on ethics to await the report of the arms deal investigation before acting further on Tony Yengeni's alleged breach of Parliament's code of conduct has evoked outcry from opposition MPs. They allege that this is evidence of the ANC's general unwillingness to submit to Parliament. ANC chief whip Yengeni failed to appear before it to explain how he came to own a luxury car that he only started to pay for seven months after acquiring it. He chose only to reply to the committee's inquiries by letter.

"I have rarely been as shocked with the conduct of the ANC. It has led to the virtual destruction of the code of ethics. I am not sure the ANC realises what it has done. They regard the protection of their own as more important than what is due to Parliament and the people," says Douglas Gibson (Democratic Alliance). "The ethics committee has been subverted with the blatantly deceptive and ridiculous argument that Yengeni's parliamentary transgressions are somehow the responsibility of the arms deal investigators," says Cedric Frolick (United Democratic Movement), while Corné Mulder (Freedom Front) says "the committee has shirked its responsibility."

But Sybil Seaton (Inkatha Freedom Party) says "it is not that clear-cut. Yengeni certainly hasn't been let off the hook." What do the rules require, what options were open to the committee, and where does the decision leave Parliament? The code of conduct says MPs must disclose all registrable interests; when in doubt, an MP must act in good faith. The code also requires declaration of any interest in a matter before a parliamentary forum, from which the MP must withdraw unless that forum decides the interest is trivial. A breach occurs when there is failure to comply with any provision of the code. The committee, acting on its own, or on a complaint, may investigate any alleged breach.

Gibson laid a complaint in letters to committee chair Sister Bernard Ncube. "Mr Yengeni needs to explain the circumstances surrounding the acquisition by him of the Mercedes Benz 320 4x4 on 22 October 1998 from a director or employee of DaimlerChrysler Aerospace or any company associated with it, and the alleged fact that a financing agreement was only concluded some 7 months later . . . On the face of it, and at the very least, Mr Yengeni appears to have had the free use of an expensive motor vehicle for a lengthy period without that benefit being disclosed."

Yengeni first replied that Gibson's complaint was procedurally incorrect. It was addressed to the committee chair rather than the registrar, Fazela Mahomed. It also disclosed no specific complaint. "I am mentioning all these factors to make it clear that I am not legally obliged to furnish any information that is sought purely on a witch hunt basis. There has to be a case made pertaining to the breach of the Code of Conduct before I have a duty to respond," reads Yengeni's letter.

In terms of the code, the committee may determine its own investigation procedure, which it did in October 1997. The code does however require that the procedure must at least involve hearing the complainant and the MP. The MP must be informed when a registrar acts. Only in the case of a complaint to the registrar, however, and not where the registrar acts on press reports, must the MP respond.
The procedure provides that a preliminary investigation may be carried out to determine the facts, after which the committee must agree to a further procedure. Mahomed's investigation found the press allegations could not be dismissed. She recommended that the committee authorise a further investigation to determine the facts, but that the investigation with regard to any alleged impropriety in respect of the arms deal should be left to the joint arms deal investigation.

The ANC and IFP majority on the committee pushed through a somewhat broader resolution that any further investigation "with respect to the motor vehicle" should await the joint investigation report. Jeremy Cronin (ANC) says this does not mean the matter is buried, but they do not want to muddy the waters: "This is not the end. We are not getting co-operation from Yengeni. The assumption is that this is because of the joint investigation is concurrent. Its report will be complete by July. The committee will look at it and decide whether there has been unethical conduct. There may then have to be an independent investigation. But the joint investigation report will empower us to proceed. It is only with that assurance that we made the decision."

Gibson argues that the decision means that, "Any member will now be able to argue with impunity that he or she does not want to incriminate him or herself and therefore declines to testify." Patricia de Lille (Pan-Africanist Congress) says, "It is bad for Parliament if, the first time this committee is confronted with an issue, it doesn't follow its own procedures." She also raises the issue of separation of powers. Speaker Frene Ginwala has told the public accounts committee that it cannot subcontract its work to external agencies, so does the ethics committee's decision amount to an unconstitutional subcontracting of the work of Parliament? Ginwala has asked the committee to send her a report on that matter.

Mulder points out that the committee could have chosen to deal with the bare issue of whether there was non-disclosure of a benefit. "The committee could have dealt with what is before it, regardless of the arms deal investigation. It could have considered whether a benefit was received and whether it was disclosed, regardless of where it came from."

However, according to the rules, making a finding on the bare issue would have required first hearing Yengeni. "It is obvious that the ANC is not prepared to put Yengeni before Parliament," says Mulder. "Assuming he had nothing to hide, all Yengeni needed to do was make a full declaration. We can only assume he did have something to hide," says Gibson.

What if the committee had further attempted to force him to be heard in order to make a decision, and he refused? It is unclear whether the rules even permit the committee to make a finding without having heard the member. Parliament would then look even more powerless in the face of a member unwilling to submit to its discipline than it already has. Perhaps the decision to wait was an attempt to protect the vestige of authority left to Parliament. Critics, however, suggest it was a device to buy time for the ANC to decide who is to be the fall guy on all matters related to the arms deal.

This would explain Cronin's insistence that the committee's resolution be amended to refer to unethical conduct by any MP, including Yengeni. "We must deal with any member of Parliament, no matter who they are. We can't let them get away with it," says Cronin.

The axe is clearly hanging over someone. It remains to be seen whether it will fall on Yengeni. What is clear, however, is that it will not be for Parliament, the body responsible for democratic oversight, to decide who will face public execution. It seems that this is being done behind closed party doors. Parliament must content itself with waiting to join in the shouts of "off with their heads!" with the rest of the rabble.