Date: 22/09/2009
Source: Institute for Security Stusdies
Title: ISS: Asmal: Speech by Professor Kader Asmal, at the launch of the ISS Database of Politicians Assets and Interests

The general secretary of the Congress of South African Trade Unions has recently raised the important issue of businessmen and women becoming ‘politicians at the same time'. He finds this relationship ‘inherently contradictory' as there arises the ‘ ... temptation to use political power for narrow personal interests' which is far too great to resist.

At first sight it is difficult to disagree with Mr Vavi in the light of historical experience. However, his approach raises all kinds of ethical and constitutional issues and may be far too wide to countenance. Business interests may include shares and other legal involvement which do not require the active involvement of a politician.

In any event, it is in the interests of parties and governments in a democracy to draw on the maximum range of people with different experiences and professional expertise. They must not be driven away from public life. A ban will therefore not do.

The answer to the legitimate issue raised by Mr Vavi is that people involved in public life must, as a matter of public policy, disclose their business and other financial interests or benefits. Of course, some who occupy important executive posts cannot play an active part in their previous businesses or deal with their own shares as they have access to information, such as the budgets of national or provincial administrators from which they could benefit. They can retain their interests but someone else - a trustee - must deal with the business.

This is the law of the land.

It is a measure of the extent to which we have moved on in the injection of ethics in public life that codes of conduct, including disclosures of interests have become de rigueur: from the very early ANC code of conduct in 1994, to parliament, to local government and the judiciary. It is a matter of regret that the rules relating to disclosure by judges have not been published. More regrettable is that according to the Public Service Commission, large numbers of senior civil servants do not register their disclosure forms, although it is a requirement. On the other hand, Chapter 9 bodies and universities, are either contemplating or have implemented ‘disclosure' requirements.

Why disclosure?

I remember encountering this question from members of the caucus of the ANC, when I introduced the parliamentary code. There are various reasons for disclosure. At the most banal level, disclosure will enable Mr Vavi to know which of his comrades is a director of a large number of companies, who owns what shares, the gifts that they have received or who has paid for flights or scholarships for children, or, very important, ownership of land or property.

But at a more professional level, disclosure will enable all of us to identify if a conflict of interests arises or will arise in future in relation to a public representative's dealings but also to deal with sudden wealth or enrichment which would warrant further enquiry.

Conflict of interest means that the public representative or his/her partner (and such partner must be brought into all codes of conduct) has financial and other interests that could unduly influence the politician's/civil servant's views or decisions with respect to the subject matter under consideration.

An apparent conflict of interest exists when an interest would not necessarily influence the public representative but could result in the public official's objectivity being questioned by others. A potential conflict of interests exists with an interest which any reasonable person could be uncertain whether or not should be reported.

There is final agreement as to the different types of financial or other interests which require disclosure. There is also agreement that South Africa has a robust system to monitor this information.

However, before we greet this very important innovation before us, there are some aspects of enforcement which need to be urgently addressed, if respect for politicians and/or democratic institutions is to be maintained even at a modest level.

The confidential section in all systems must be removed. It was a compromise to obtain unanimous support from all parties more than ten years ago. It is now confusing and administratively difficult to manage. Disclosure is part of a wider ethics world. Therefore, each public representative should produce an income tax certificate each year; monitoring can only improve if a high status Commissioner of National Ethics is appointed to ensure compliance and to report on transgressions of codes of that body.

To remove this ‘revolving' door for civil servants and politicians who enter business after retirement, a reasonable cooling-off period is necessary.

Finally, penalties must be raised and hearings and/or prosecutions must be speeded up.

All of us must therefore welcome the setting up of the conflicts of interest project which was launched in 2007 by the Corruption & Governance Programme at the Institute of Security Services (Cape Town office).

The project's objective is to understand the structural reasons for conflicts of interest, monitor the enforcement of disclosure regulations, provide applied policy research and promote regulation where it is absent and encourage research on the subject.

In addition there are the following objectives:
• Promote the importance and value of the respective ethics codes amongst Members of Parliament and legislatures; Members of the national and provincial executives; and Councillors in Metropolitan areas.
• Encourage accountability through increasing access for researchers, civil society and the media to the public sections of both the national, provincial and local Registers of Members' Interests and Executive Members' Interests.

The project can now announce the provision of an innovative tool to empower citizens to hold government accountable by building a searchable electronic database that will provide the general public with details of the disclosures made by politicians on their financial assets and business interests.

The webportal and electronic dataset is now complete, and is called ‘Who owns what?' - the ISS Database of Politicians Assets and Interests.

For the first time the publicly accessible disclosure forms of politicians' will be made available through a searchable database. This online database is the result of two years of research, which has yielded almost 6000 records submitted between 2004 and 2008 by elected members in the National Assembly, National Cabinet, nine Provincial legislatures executives as well as the country's six metropolitan cities. The exercise will be on-going - the Institute is committed to collecting the annual disclosure records every year from at least 15 different institutions and to upload to the webportal.

The records were collected with the support of the various public institutions and by and large reflect their commitment to open, accountable governance as envisaged in the Constitution.

In addition to populating the database with disclosure records the project has also created an online tool for users, which includes web pages dedicated to:
• Ethics/ conflicts of interest research,
• South African and international legislation,
• News items from South African media sources.

A detailed contact booklet has been created as a guide for those interested in obtaining records from various institutions and will also be made available on the website as a downloadable pdf document. It contains the names and contact details of all those officials tasked with implementing and monitoring the disclosure regime in South Africa.

This is the first comprehensive database of its kind on the African continent and one of the few examples of such databases internationally. I hope that it will prove a useful tool for researchers, civil society, the media and ultimately promote not only accountability of but also integrity in public life in South Africa.

‘Most important of all, it will ensure better policing of an area whose contribution to openness and accountability has not always been recognised', Professor Asmal concluded.