By David Lewis
Public Service and Administration Minister Lindiwe Sisulu has injected a new sense of urgency and determination into government efforts to tackle corruption. The gazetting of the Public Administration Management Bill is evidence that this is more than talk.
This legislation is potentially an obstacle to corruption at least as great as the "secrecy bill" is an aid to it. And just as the public opposed the "secrecy bill", so should it support the Public Administration Management Bill.
The bill seeks to introduce a number of long overdue provisions to the statute books. Among the most notable are the ban on public servants doing business with the state; limiting the dizzying revolving door by introducing cooling-off periods for public sector employees accepting employment in the private sector; and prohibiting the re-employment of public sector employees dismissed for corruption-related offences.
The most significant institutional development coming out of the planned legislation is the establishment of an Anticorruption Bureau.
While scepticism in an understandable response to the establishment of yet another anticorruption agency, the bureau is distinguishable from the poorly co-ordinated proliferation of anticorruption agencies in the criminal justice system.
The bureau’s focus is on workplace discipline arising from corruption-related misconduct on the part of public sector employees. It is a centralised resource for the investigation of corruption-related misconduct perpetrated by public servants and for managing the disciplinary processes that follow an investigation.
The need for this is incontrovertible. We could cite the Public Service Commission data on the poor response of government departments to the tip-offs referred from public hotlines. The number of public servants on lengthy periods of paid leave while disciplinary processes meander along is legendary.
Disciplinary action does not replace the need for criminal investigation and prosecution. In fact, the bill requires that the bureau refers evidence of corruption to the criminal justice authorities. But disciplinary action is a critical adjunct.
First, not all acts of corruption may warrant criminal prosecution — it may not be worth expending police resources in prosecuting the official who used the department car for his private business, but it certainly warrants a strong disciplinary response.
Second, the standard of proof required in disciplinary cases is significantly lower than that required for successful criminal prosecution. And third, disciplinary action at least rids the department of the perpetrator while the criminal proceedings are under way.
Our gripe with the bill is that it does not give sufficient power to the bureau to initiate investigations and disciplinary processes. We want the bureau to be an elite unit responsible for ensuring discipline related to corrupt conduct in all three tiers of the government. Where provincial and local government are concerned, we think the bill is overly fearful of encroaching on other spheres of the government.
As drafted at present, the bill provides that the bureau has to be invited by a provincial premier or mayoral committee to enable it to intervene in these, arguably the most corrupt, tiers of the government.
Our advice is while it may be necessary for disciplinary remedies to be imposed at these levels, there would be no constitutional bar to the bureau initiating investigations and convening disciplinary processes in all three tiers of the government.
It would be very difficult for responsible officials at the lower tiers of the government to refuse to act on an adverse finding from a well-run disciplinary process initiated by the bureau.
Two things are certain: first, this bill is going to meet with powerful resistance. Not because the majority of public servants are corrupt — in fact, our experience tells us that the majority of public servants would welcome efforts to rid their workplaces of corrupt elements. But rather because so many public sector institutions — from national government departments to rural schools — have become sites of accumulation for powerful and well-organised syndicates. This is why public support for the bill is vital.
Second, if the government is truly interested in building a capable, developmental state, then instilling discipline in public administration is the place to start. Elaborate plans will come to nothing without a disciplined cadre of public servants.
• David Lewis is the executive director of Corruption Watch. This article first appeared in Business Day. Read the original version here.