By Kabelo Sedupane
The resignation of IEC chairperson Pansy Tlakula reveals that there are consequences to the flouting of procurement rules and unethical conduct – however, the question remains as to whether the unauthorised expenditure of public funds should necessitate further investigations and harsher sanctions. Within a culture of rampant abuse of public funds, the only answer is yes.
Corruption Watch is participating in Transparency International’s global campaign aimed at ending impunity for those who abuse public power and resources, and Tlakula’s mere resignation in spite of the significant abuse of public funds serves as a reminder of the impunity enjoyed by powerful and well-connected individuals. It also weakens any efforts to deter the abuse of public funds and corruption generally.
Tlakula’s improper conduct in the procurement of the IEC’s head office was first highlighted in a finding by the public protector and was subsequently confirmed when the National Treasury commissioned a forensic investigation into the matter. She presided over a grossly irregular procurement process which was characterised by numerous violations of applicable legislation. In June this year, the Electoral Court found that Tlakula’s misconduct warranted her removal from office, a finding which Tlakula unsuccessfully appealed and which precipitated her resignation.
Not enough just to resign
But given the longstanding poor enforcement record of our police and prosecuting and other responsible authorities, many may have forgotten the penalties for maladministration, misconduct and even corruption – penalties that are designed to prevent and deter maladministration and corruption.
The Public Finance Management Act (PFMA) is very clear that accounting officers will be found guilty of an offence and be liable for a fine or imprisonment, if that accounting officer wilfully or in a grossly negligent way fails to comply with provisions of the act.
Tlakula was an accounting officer for the IEC and was found to not have complied with provisions in the PFMA. The PFMA and the regulations thereto impose a number of obligations on accounting officers and create oversight mechanisms which are designed to ensure transparent and efficient financial control and reporting. When the accounting officer fails to adhere to the requirements and regulations of the PFMA, National Treasury is obliged to direct institutions to lay criminal charges against persons implicated in financial misconduct, should the accounting officer fail to do so.
If Tlakula and her collaborators are indeed implicated in the acts of misconduct and maladministration, then mere resignation and public disgrace represent yet another instance of impunity in action.
Letting them get away with it
Enforcing provisions of the PFMA and other legislation like the Prevention and Combatting of Corrupt Activities Act (Precca) requires intervention of the criminal justice authorities, the police and the National Prosecuting Authority.
This is unlikely to fill anyone with confidence. The police have declined to investigate high profile matters that reek of corruption – the failure to investigate the Social Security Agency’s award of a R10-billion contract to CPS is one recent example. So too is their apparent lack of interest in the shenanigans involving former ministers Dina Pule and Tina Joemat-Peterson, despite highly adverse findings by the public protector in relation to both individuals.
It is also disturbing to note that on those rare occasions when successful criminal prosecution has followed a police investigation, the sentences imposed have, apparently as a result of their political connections, been effectively commuted. Think of Shabir Shaik, Tony Yengeni and Jackie Selebi.
By no means are we saying that all maladministration is criminal. Some cases of conduct amount to an abuse of public power and resources that may not be criminal, but nevertheless clearly constitute conduct unbecoming public office. In these cases resignation alone may well prove to be the effective sanction.
But where there are red flags signifying possible corruption the police should investigate, the prosecuting authorities should prosecute, and the courts should impose the sentences so clearly provided in legislation such as Precca and the PFMA. Only then will we be able to say that the culture of impunity is being challenged.
Breaking the public’s trust
Tlakula has done a great deal for our country and has been part of building our democracy so it can be argued that she bears an even greater responsibility to ensure good governance, especially within an institution like the IEC for which integrity and transparency is vital.
The public placed massive trust in Tlakula, thus facilitating her access to significant public resources and power. She has betrayed this trust and abused her power and the public resources under her custodianship with impunity. The responsible authorities have a special duty to investigate and take steps against her – but have chosen to allow her to escape any significant penalty as a result of her conduct. It is no wonder then, that so many continue to engage in unlawful and corrupt practices without any fear.
We cannot have people in high office treating the resources of the State as though they were their own and seeing themselves beyond reproach. More and more, we see public officials being implicated in irregular dealings and abuse of power, but then walking away scot-free with all their unlawful gains in hand. Engaging in corrupt activities is a bet many high ranking officials are taking, and it seems to be a winning bet.
But lest we forget that impunity is an enabler … when the person holding the highest office in the land is conducting himself in a similar fashion way, can we expect higher standards from those who surround him?
• Kabelo Sedupane is a member of the legal and investigations team at Corruption Watch.