Beyond CR17 - Problems With The Executive Members’ Ethics Act And The Executive Ethics Code

Introduction

For years, various Public Protector (PP) reports have highlighted that the pieces of legislation which seek to guide the behaviour of members of the Executive– the Executive Members’ Ethics Act[i] (the Act) and the Executive Ethics Code[ii] (the Code)– have serious flaws. This brief considers the biggest problem is that the lacunae in the Act and the Code allow violations to be committed with insufficient, or absent, sanctions, and that there seems to be little political will to bring about crucial amendments.

Issue 1: The President Gets To Judge His Own Ethics

Section 96 of the Constitution demands that members of the Cabinet must act in accordance with a code of ethics set out by national legislation. As the President is the head of the Cabinet,[iii] he must be bound by the Act and the Code. The Act provides that the PP should report to the President if the complaint is against a Cabinet member, and the President must thereafter submit a report to the National Assembly (NA) on any action to be taken against the Cabinet member.[iv] Therefore, in terms of the Act, the President receives a report on his own potential ethical breach, and is then expected to recommend the appropriate action to be taken against himself.

The Constitutional Court recently highlighted this anomalous situation in Public Protector v President of the Republic of South Africa[v] where it stated that ‘the ...Act does not cater for action to be taken against the President where he or she is responsible for violating the Code’.[vi] The Court opined that breaches by the President should be referred to the NA, since the Constitution already empowers the NA to take action against the President in certain circumstances.[vii] This is logical advice, but without any legislative amendment, the President may violate the Act and Code with impunity.

One might assume that the Act’s failure to provide for proper remedial action against the President is a mere legislative blunder that had not been detected until now, but pleas of ignorance must be dismissed since this issue was highlighted by PP Thuli Madonsela in Report 1 of 2010/2011.[viii] This report, which examined whether then-President Zuma failed to disclose his financial interests in terms of the Code, created the unusual situation where both the Complainant and the Presidency were in agreement – at least over the fact that the Code was unclear about what should occur if the President breached it. As will be discussed below, the PP recommended that this oversight be addressed, but over a decade later, it has still not been rectified.

Issue 2: Absent Sanctions

In the report mentioned above, the PP also noted that the Act and the Code made no provision for the consequences of violating the Code, and recommended that Parliament and provincial legislatures should consider the application, with effect from June 2010, of the same sanctions applicable against members of Parliament found guilty of violating the Parliamentary Code of Conduct.[ix]

In response, on 27 July 2010, Cabinet adopted interim sanctions applicable to members of Cabinet who are found guilty of violating the Code.[x] These sanctions include a fine not exceeding the value of 30 days’ salary, or a reduction of salary or allowances for a period not exceeding 15 days.

A statement by Cabinet provided that the interim sanctions would be applicable only until the Minister of Justice completed a review of the Code, and that a report would be provided to Cabinet by November 2010 addressing all the issues identified by the PP.[xi] At present, the “interim” sanctions are still being applied since no amendment to the Code was ever made.

This is alarming since Cabinet had approved the interim sanctions for a limited period only– until a review of the Code was done. It is unclear when, or if, this review was completed. The sanctions have since been treated as though they are a permanent feature of the Code, which is problematic since the Act provides that it is the President who is responsible for publishing a Code, and proclaiming this in the Government Gazette.[xii] It would seem, then, that any amendment to the Code should follow the same route, which has not been done.

Another issue relating to sanctions is that in certain instances, they will not be applicable at all. In some PP reports, the conclusion was made that no remedial action should be taken against the member that was the subject of the report and who had been found to have violated the Code because he or she was no longer a member of the Executive, and so it would be moot to do so.[xiii] This is because in terms of the Act, fourteen days after receiving the PP report, the President or Premier must recommend the action to be taken against the offending member to the NA, NCOP, or provincial legislature, as the case may be.[xiv] If the member is no longer a part of any of these bodies, the body would not have authority over him or her, and thus no action can be taken.

This is unfortunate, since it effectively means that a member can act unethically and face zero repercussions. There is no reason for members to abide by the Code, when they could choose instead to blatantly and unapologetically violate it and then resign from their position.

Issue 3: Residual Flaws

In Report 1 of 2010/2011,[xv] the PP noted that anomalies in the Code identified by previous PPs had been unaddressed. In summary, the anomalies were that:

• There was a lack of clarity about which disclosures are necessary[xvi] where such disclosures should be made and in how much detail the disclosures must be made;[xvii]
• There was uncertainty on the office or person that the President should approach regarding the acceptance of gifts with a value exceeding R1000; [xviii]
• The details of interests disclosed in the Register of Financial Interests of Members of the Executive (the Register) were not meticulously kept by the Secretary of the Cabinet (the Secretary); [xix]
• There were inadequate administrative support mechanisms in place to aid compliance with the obligations in the Code;[xx] and
• There was a risk of a breach of confidentiality since “there appeared to be more than one person assisting the Secretary ... with the management of the Register”.[xxi]

It is uncertain whether any internal measures have been implemented to address these concerns.

Ignoring Recommendations

In Report 1 of 2010/2011, the PP recommended that Parliament should consider amending the Act to address all the uncertainties and anomalies identified above.[xxii]

She stated further that specific attention should be devoted to providing clarity on who the President should approach regarding the acceptance of gifts with a value in excess of R1000; whether such office or person should grant permission or advise the President regarding the gift; and who should receive a PP report involving the ethical conduct of the President.[xxiii] This report also recommended the introduction of sanctions identical to those applicable against Members of Parliament found guilty of violating the Parliamentary Code of Conduct. As stated above, this resulted in interim sanctions being put in place.

On 6 May 2011, the Draft Executive Members’ Ethics Amendment Bill, 2011­ was published for public comment.[xxiv]Although the PP had recommended several changes to be made to the Act and Code, the only change contemplated by the Bill was that the PP should submit her report to the Speaker of the NA if the complaint of a breach of the Code is made against the President.[xxv] Strangely, no provision for sanctions was included in the Bill. Despite the publication of the Bill, it was not submitted to Parliament and no change to the Act or Code was made.

Change was again contemplated following the publication of Report No: 6 of 2016/17, in which PP Thuli Madonsela reiterated that Parliament should review the Act and that the President should amend the Code in line with the Act. [xxvi] She noted that the Act should be reviewed to improve the provisions dealing with integrity and avoiding conflict of interest, and to clarify the proper response to whistleblowing and whistle-blowers”.[xxvii] Soon thereafter, the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly affirmed that PP recommendations are binding unless reviewed by a Court.[xxviii]

As a result, a series of meetings was held by the Portfolio Committee on Justice and Correctional Services (the Committee) in 2017.[xxix] It was noted that the power to initiate legislation belongs to the Executive, and that the President had, on 6 November 2017, announced in the Government Gazette that he had transferred the administration of the Act to the Minister of Justice and Correctional Services.[xxx] As such, the Committee elected not to run a parallel process and recommended that the NA request the Minister of Justice and Correctional Services to investigate possible shortcomings in Act that may require legislative amendment and to introduce this to Parliament.[xxxi] Since then, nothing seems to have happened.

Conclusion

Clearly, the Act and the Code are in need of urgent reform. The flaws that have been identified are that the President is allowed to be a judge in his own cause, that sanctions are occasionally unavailable for those who violate the Code, and that there is a general lack of clarity and administrative support in the Act and the Code. These issues had been highlighted over a decade ago, yet change remains elusive. It is of the utmost importance that the Minister of Justice and Correctional Services urgently reviews the Act and the Code, and that Parliament introduces amendments.

Zeenat Emmamally
Legal Researcher
zeenat@hsf.org.za

[i]Act 82 of 1998.