Two Ethics Lessons from Nkandla

2 October 2014
The Public Protector’s report on Nkandla and President Zuma’s reaction thereto have highlighted two fault lines with regard to ethics.  The first fault line relates to the process for handling unethical conduct by a sitting president. The other fault line concerns the manner in which political authority figures react when their unethical conduct is exposed.

 

Prof Deon Rossouw

CEO of the Ethics Institute of South Africa

The Public Protector’s report on Nkandla and President Zuma’s reaction thereto have highlighted two fault lines with regard to ethics.  The first fault line relates to the process for handling unethical conduct by a sitting president. The other fault line concerns the manner in which political authority figures react when their unethical conduct is exposed.

  •          Process for handling unethical conduct by a sitting president

Our constitution makes it clear that political authority figures, and Cabinet in particular, have an obligation to act with moral circumspection and responsibility.  Section 96 of the Constitution clearly states that conflicts of interest between their official responsibilities and their private interests are to be avoided.  They also have a moral responsibility not to misuse their official capacity to enrich themselves.

This moral responsibility of cabinet members was eventually given effect by the Executive Members’ Ethics Act of 1998.

In the particular Act, it is explicitly stated that the President is seen as a member of Cabinet and that the President’s conduct is therefore also subject to the provisions of the Ethics Act.

The Act also makes it clear that alleged breaches of the Ethics Code by executive members must be investigated by the Public Protector.

The report of the Public Protector on breaches by Cabinet must be submitted to the President.

The President then has 14 days to react to the Public Protector’s report and, thereafter, the Public Protector’s report, as well as the President’s comment thereon, must be submitted to the National Assembly.

Effect was given to this provision of the Ethics Act in the year 2000 when Mr Zuma, in his role as acting president during the Mbeki regime, promulgated the Executive Ethics Code in the Government Gazette.

The Executive Ethics Code spells out the ethics standards with which cabinet members have to comply. Amongst other things, it makes clear that cabinet members may not misuse their positions of authority to benefit themselves.

It also provides guidelines for handling conflicts of interest, disclosure of financial interests and receipt of gifts.

An obvious fault line in both the Executive Members’ Ethics Act and the Executive Ethics Code is that they do not provide for the President being the person accused of a breach of ethics.

This fault line has resulted in the President being in the position of having to receive the report on his misconduct and also having to make a recommendation thereon to Parliament.

This is obviously an unhealthy situation because it is a legal and moral principle that someone cannot be both player and referee.

This fault line in the Ethics Act has been pointed out repeatedly.

An amendment to the Ethics Act was drafted in 2011 already, precisely in order to rectify this oversight in the Act.

In the proposed amendment to the Ethics Act, an alternative procedure to be followed is proposed in the event of a sitting President being accused of a breach of the Ethics Code.

Unfortunately, this amendment has to date not yet been approved. Consequently, this untenable situation is persisting and the same unsound process may be repeated should the President make himself guilty of further misconduct.

It is therefore very important that this proposed amendment to the Ethics Act be effected as soon as possible to prevent similar fiascos.

  •          Reaction of political authority figures who are exposed for unethical conduct

A second fault line in the Nkandla scandal relates to the manner in which the President reacted to the finding of unethical conduct by the Public Protector.

The finding of the Public Protector was that the President had not transgressed any law, but had indeed breached the Executive Ethics Code.

The specific breach pointed out by the Public Protector was that he had used his position to enrich himself. This happened despite both the Constitution and the Executive Ethics Code making it clear that those holding political power must use their position in the interest of South Africa and her people.

From the President’s reaction so far it would appear that a clear distinction is not being made between a breach of law and ethical misconduct.

His reaction of requesting even more investigations to determine whether he is guilty of any breach of legislation misses the point.

The Public Protector has in fact already indicated that there is no clear proof of a breach of legislation, but indeed a breach of the ethical standards for Executive Members.

Although there is a close relationship between legislation and ethics, the two are never identical.

Legislation and ethics can at times be in direct conflict, as was the case with Apartheid legislation, which was undeniably unethical.

When the distinction between ethics and legislation becomes blurred, it opens the door to unethical conduct being hidden behind legislation.

It often happens in both the public and the private sector that unethical conduct is condoned by pointing out that such conduct is not illegal.

The fact that conduct is legal does not necessarily make it ethical.

A charge of unethical conduct places the onus on the alleged ethical transgressors to explain whether their conduct can in fact be justified ethically. Are there perhaps other factors that should be taken into account to cast their conduct in a different light – and even justify their conduct ethically?

Of course not just any explanation of unethical conduct will do. Often, ethical transgressors make themselves guilty of rationalisation. They try to justify their conduct by shifting blame or making weak excuses.

Sometimes, however, there are indeed factors that can cast apparently unethical conduct in a different light and even justify the alleged unethical conduct.

It is precisely the lack of any attempt to provide moral justification for the charge of unethical conduct that is of concern in the President’s reaction to the Public Protector’s finding that he acted unethically.

When there is no justification for unethical conduct, the only appropriate reaction is to acknowledge that you acted unethically and to take responsibility for your unethical conduct.

It, however, requires moral courage – and moral character.

[This article originally appeared in Beeld of 2 October 2014]