Dear Corruption Watch,
We are often told that an effective remedy would be to place firms who engage in criminal or ethically suspect conduct on one of the various official blacklists that prevent them from doing further business with the state.
But what about professionals like doctors, nurses, lawyers, auditors and engineers? Members of these supposedly noble professions often seem to be enablers, and sometimes out-and-out perpetrators, of corruption.
Surely their professional associations should be blacklisting them and preventing them from practising and besmirching their professions.
Can these professional associations be compelled to investigate and, if found guilty, punish their members by blacklisting corrupt members? And if they do not, can interested citizens and NGOs ask the courts to order them to take action?
Various professions have bodies that are mandated to develop and apply professional codes of ethics for their members. For instance, auditors have the Committee for Auditor Ethics that is tasked with determining what constitutes improper conduct and developing ethical rules and guidelines for auditors.
Any person may complain to the Independent Regulatory Board of Auditors that an auditor has breached those ethical standards. If that complaint appears justified, it should be investigated and a disciplinary hearing must be held.
Depending on the seriousness of the improper conduct, guilty auditors face penalties ranging from being reprimanded to having their rights to practise revoked.
Corruption, fraud and other offences involving dishonesty would most likely be punished by removing that person’s right to practise, but the appropriate sanction would depend on the circumstances.
Other professions have similar bodies that have a responsibility to develop and apply ethical codes. These include the law societies, the Council for the Architectural Profession, Engineering Council of South Africa and bar council. Members of the public can report misconduct to these bodies and they should then investigate and discipline members.
Still, there seems to be a noticeable absence of professionals being investigated for misconduct related to corruption.
Lawyers, for instance, play an important role in applying for and reviewing tenders, and infrastructure projects are impossible without engineers. It is difficult to believe that none of the professionals involved in these projects is exposed to corrupt transactions.
Part of the low rate of reporting by and of professionals might be caused by the mistaken belief that professionals are bound by the requirements of confidentiality. Lawyers often claim privilege when refusing to discuss their dealings with clients.
This is true, but only to an extent. Privilege does not extend to matters in which a lawyer’s advice is sought for the purpose of breaking the law or when lawyers are asked to break the law outright. Other professions should have similar rules dealing with confidentiality.
Not only are criminal transactions not shielded by confidentiality, but some professionals are under a duty to report to the police any suspicions they may have of corruption when the transaction is valued at more than R100 000. Unfortunately, it is not clear whether most professionals know about this duty or are complying with it.
Is it possible for members of the public to force professional associations to investigate corruption and unethical behaviour?
That depends on the framework in which those associations are operating. Associations established under legislation could probably have their decisions not to investigate corruption reviewed by a court and then be compelled to do so if they had acted incorrectly.
Such an approach would be long and expensive. Unless a professional association is really not cooperating, the more practical approach is to engage with it and advocate for better systems of accountability.
• This article was first published in Sunday Times: Business Times