Dear Corruption Watch: You’ve reported before on the new Public Administration Management Act. You’ve told us that the act is really important since it prevents state officials from doing business with the state and requires them to declare all financial interests.
I’ve heard that the president still hasn’t brought the act into operation. When is he due to do so? Why hasn’t he done so already? Given the urgency with which we should be fighting corruption, is there any way that we can make him hurry up?
Waiting Less Than Patiently
You’re entirely correct to be wondering why the president hasn’t yet brought the act into operation.
The act is intended to give effect to the constitution’s promise that all spheres of government must be effective, efficient, transparent, accountable and coherent. It introduces a range of tools and bodies that should act to prevent and reduce the corrosive effect of corruption on the public administration.
None of these tools mean anything until the act is brought into operation.
The president gets to decide when the act comes into effect, and he hasn’t yet chosen a date. To some extent, this is not unexpected. Most of the tools in the act still require more detail before they will have any impact.
For example, section 9 stipulates that public administration employees must disclose their financial interests, including shares and financial interests, sponsorships, gifts, benefits, immovable property and the like. This is a potentially very powerful tool. It could, for instance, help pick up corruption in tender procurement by identifying officials who have financial interests in the companies they appoint to provide services to the government.
However, the requirement of disclosure still requires a proper regulatory framework. Not every gift should be declared. We don’t really want a registry of all the small Christmas presents given to civil servants by their children. So, the act allows for the setting of a threshold for the size of gifts that have to be declared – a threshold should pick up when people are given SUVs as gifts, but won’t require disclosing boxes of chocolates. Similarly, we want civil servants to make transparent disclosures of their assets, which requires that we have clearly prescribed ways for collecting the details of their assets.
For this reason, the act wasn’t brought into force immediately. Instead, the president gets to decide a date when it comes into operation. This will allow time for the minister responsible for public service and administration to pass the regulations that give more concrete effect to the legislation.
However, it has now been more than six months since the act was passed by Parliament. Shouldn’t the regulations that are required already have been developed? Frankly, yes. Six months is more than enough time for regulations to be formulated.
Unfortunately, there is very little that can be done to compel the president to bring an act into operation and very little that can be done to force a minister to pass the regulations needed for the legislation to be effective. Although it is conceivable that the failure to bring the legislation into operation may be reviewable by a court, the courts will be reluctant to do so, since decisions such as these fall squarely into the domain of the executive.
The best and most effective mechanism for South Africans to get the Public Administration Management Act into operation is to lobby the government and its political representatives. Only when the Presidency feels pressure can we be assured that he will get the minister to pass the necessary regulations and bring the act into operation.
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• This article was first published in Sunday Times: Business Times