Can MPs and ethics co-exist?

'Parliament lies at the heart of our new democracy. The standards it keeps, or does not keep, are crucial to the wellbeing of the whole nation and it is incumbent on the leaders in parliament to take steps to ensure that its integrity is beyond question. We should not have to be dragooned into setting high standards in public life. We should willingly seek maximum openness about what our public representatives do, and receive.'

This is as true today as it was in 1996 when Kader Asmal was discussing the Code of Ethics for Members of Parliament (MPs).

Intrinsically connected to the advent of a new democratically elected parliament was an earnest attempt to build a culture of integrity amongst elected representatives. A code of ethics was drawn up for members of parliament (MPs) to declare their assets and the ethics committee was set up to further increase levels of accountability. The watchwords were transparency, accountability and openness.

Over the years there have been several instances of non-disclosure which the committee was charged to deal with. Tony Yengeni, Mosiua Lekota, Welcome Msomi, Winnie Mandela and others have all had to deal with the ignominy of having to provide an explanation for non-disclosure to the ethics committee. More recently, we saw former minister of Communications, Dina Pule, having to face the Ethics committee for a breach of the code.

Sections 47 and 106 of the Constitution, relating to membership of the National Assembly and National Council of Provinces respectively, state that citizens may only be disqualified from membership "when convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine (and) no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired".

Furthermore, Parliament itself is restricted in terms of the penalties it can impose on errant members. According to the current rules, the Speaker, after a disciplinary process, may only issue a reprimand of varying degrees of severity and, where necessary, call for remedial action, such as the repayment to parliament of misappropriated money. These provisions and limitations essentially place the onus on the various parties to ensure that MPs found guilty of criminal acts are appropriately disciplined.

The codes of ethics for both MPs and the executive clearly envisage that elected representatives not "expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests" or use their public positions for private gain.

When the code was formulated in those early, heady and optimistic days post-1994, the emphasis was on building a culture of accountability and ensuring elected representatives and officials "did the right thing".

Former chair of the ethics committee of Parliament, Ben Turok, raised an important point about the code of ethics which governs all MPs. Initially when the code was conceived- and the late Kader Asmal was instrumental in this process - its purpose was preventative rather than punitive. After all, those were the heady days after the first democratic elections. As Asmal said at the time, surely members would not have to be dragooned to do what was ethical?

What we have all learnt since then is that the sanctions in the code remain inadequate as a deterrent for non-disclosure of interests. Pule was fined a month's salary and 15 days' suspension of privileges, yet still remained an MP because ultimately, the party 'owns' the seat and is the final arbiter of what happens to an errant MP.

In 2011 President Jacob Zuma himself was found not to have disclosed his financial interests as required by law. The usual practice is that the secretary to Cabinet monitors disclosure. In terms of the Executive Members Ethics Act as well as the related executive ethics code, members of the Cabinet must disclose all financial interests and liabilities as well as those of their spouses and dependent children, within 60 days of assuming office. Zuma eventually filed the declaration but had in fact been in breach of the law.

Under the recent careful stewardship of former ethics committee chair Turok, the code of ethics was over-hauled. In terms of the new code all members of Parliament must abstain from accepting rewards, gifts or benefit from a person that in anyway may result in blunt conflict of financial or business interest for the member, their immediate family or business partners. Similarly, members are not allowed to accept gifts, benefits or rewards that would alter the manner in which they execute their official duties or to achieve goals that would otherwise be considered as corrupt or improper.

The code prohibits members from using their position of influence to advance personal interest or those of immediate family and business partners. In addition to this provision, the code also forbids members from engaging in private business activities, where their involvement in such activity may result in members misusing information unknown to the public to maximise personal gain.

In the interests of transparency and openness, the code makes it compulsory for members to disclose a direct personal financial interest, or that of their immediate family or business partners, in any matter that is under consideration or has to be decided on by a parliamentary committee of which the relevant member is a member of or are involved in. Members may be requested to terminate their participation in the activities of a parliamentary committee, if it is established that a member, the immediate family of a member or business partners have an interest in a matter under consideration before a committee. However, should the committee determine that a member's interest is inconsequential or irrelevant to the matter under consideration before a committee, such member may exempted from this provision of the code.

The code further instructs members "to disclose any form of personal interest when members make representations as a member to a Cabinet member or any organ of state" and may not request compensation, reward or benefit for themselves, immediate family members or business partners for making representations as a member on behalf of any person or body.

In contrast to the previous code, the new code explicitly prohibits members and their immediate family or business partners from acquiring benefits through tenders or state contracts. Some of the other amendments to the code include an extension in the time period for the disclosure of registerable interests after the opening of Parliament or appointment of new members, from thirty to sixty days and an increase in the value of gifts that need disclosure from R350 to R1,500.

There was no significant change in the different categories of financial interests that members are compelled to disclose. However, some of the new regulations include that members must provide details on long-term loans and mortgage bonds against their properties, public contracts and may only undertake employment external to Parliament when such work has been commissioned by the political party of the member, on the condition that the disclosure of external employment is accompanied by written approval from the chief whip of the relevant political party.

The joint committee on ethics and members' interests may consider and investigate alleged beaches to the code either on its own or on receipt of a compliant by a third party, in relation to the contravention of the general rules of the code and when members deliberately or "grossly negligently" deceives the registrar by providing inaccurate or erroneous details concerning their interests. On receipt of a complaint of an alleged conflict of interest or breach of the code, the registrar is obligated to inform a member with details of the complaint within seven days and such member must be granted another seven days to respond to the complaint.

Before a full-scale investigation into a complaint can be instituted, the registrar must determine the plausibility of the compliant and submit a recommendation to the committee which indicates the seriousness of the complaint, preliminary findings, whether further investigation is necessary and who will be responsible for such an investigation, among others. Thereafter the registrar's report is assessed by the committee, which decides whether the report of the registrar is acceptable or whether it is unjustified.

The code additionally makes provision for situations in which the facts in respect of a complaint are contested, through conducting hearings to resolve disputes.

No substantial amendments were made to the punitive measures of the code, most of the previous penalties were retained, which prescribes that members found in breach of the ethical standards established by the code can either be subjected to being reprimanded; issued with a fine that does not exceed the value of a month's salary, a decrease in remuneration or remittances for a "period not exceeding 30 days and suspension of certain privileges or a member's right to a seat in parliamentary debates or committee meetings for a period not exceeding 30 days".

Yet, the new code provides the committee with discretionary powers to recommend greater punitive action or penalties other than those specified in the code, especially if a member has deliberately supplied misleading or inaccurate information relating to their interests. However, such recommendation is entirely dependent on approval of Parliament.

It remains to be seen whether the new code will be effective in curbing the mischief of conflicts of interest which have so bedeviled South African public life. Civil society and the media will need to be vigilant in examining the register of members' interests and verifying the information supplied by MPs to further ensure that the constitutional standards of transparency and accountability are maintained.

Judith February is a senior associate at the Institute for Security Studies (ISS).