1. The Role and Function of the Joint Committee on Ethics and Members’ Interests, like the Code itself, must be viewed from a broad perspective. Just as it is the spirit as much as the letter of the Code that it is crucial for its well-being, so with the Committee it is the manner in which it conducts its responsibilities as much as the substance that is important to its public credibility.
   
2. The notion of public credibility is central. Apart from the obvious leadership role that the Presiding Officers perform on behalf of their respective two houses, it is hard to think of a body within parliament that is as important to the integrity and public credibility of parliament as a whole as the Ethics Committee. One or two well-publicised cases, potently illustrated the extent to which public perceptions may be carved in direct relation to the way in which the Committee is able to manage such cases. Although standards in parliament have, I believe, been generally high disproportionate levels of damage may be done by those cases of misconduct that do arise.
   
3. I make this point with two contextual factors in mind. The first relates to current perceptions of parliament, the second to the model of self-government that the South African parliamentary ethics regime has adopted.
   
4. Public confidence in parliament should not be taken for granted; in fact, the evidence suggests that it is somewhat precarious. The most recent Afrobarometer survey found, in 2003, that only 31% of people trust parliament most of the time or just about always (down two per cent from the 1999 survey). This figure compares unfavourably with other parliaments in the region. For example, the equivalent figure for the Namibian parliament was 42.5% for Ghana 48.1% and for Botswana 36.9%. The Kenyan parliament, in a survey completed after the post-Moi reforms, enjoyed a very high figure of 53.4%; though it would surprising if that figure could be sustained now, given the recent revelations of corruption in the new administration.
   
5. The Kenyan case shows quickly the tide can turn and how the integrity of those in leadership positions is crucial to the credibility of the political process. When South Africans were asked in the 1999 survey "how many people in parliament do you think are involved in corruption?" 45.6% of the sample said "All" or "Most". Indeed, our work in the Committee between 1995-96 was informed by what some of us had seen in Britain during the early 1990s when the House of Commons became a laughing stock because of revelations of impropriety. The lack of any regulation had provided dishonest British MPs with the perfect opportunity to put personal interests ahead of the public interest. The Nolan Committee on Standards in Public Life was set up. At its first hearings, it was told by pollsters that only estate agents were less popular than MPs in the eyes of British society.
   
6. The so-called ‘travelgate’ saga presents a potentially equally serious threat to the South African parliament. Thus, the review of this Committee is timely. It must take the opportunity to tell the public that it is serious about ethics in parliament.
   
7. Parliament cannot afford to make any complacent assumptions about public confidence in its integrity. This is especially so where the model for governing ethics is fundamentally based on the notion of self-regulation. In contrast to some systems, in 1996 we opted for a model whereby Members of Parliament would themselves take responsibility for governing the system of ethics and financial disclosure. A number of systems around the world include some element of independent scrutiny – whether through an autonomous or semi-autonomous Commission or Commissioner, or otherwise. We said "No, we will trust ourselves to do the right thing".
   
8. This approach gives us the opportunity to mould a system that is responsive to the institutional exigency of an evolving and still relatively new democratic parliament. The danger, however, is that because we are ‘judge and jury’ and in our own cases the public is more likely to be sceptical when we reach decisions that if not properly reasoned or transparently explicable appear to serve our own interests and not the public interest.
   
9. With this in mind, it is important to re-state the philosophy which founded the original approach to this subject. The Code and the system of disclosure that it creates is not about wealth but about potential conflict of interest and the management thereof. The first fundamental decision my Ethics Committee made in 1995 was that MPs would be entitled to hold directorships and second jobs etc. Some jurisdictions either disallow such positions totally or regulate them more tightly. The quid pro quo is that there must be full disclosure. This is to protect both the public interest – that the public have the right to know what potential competing interests may exist when a public representative makes law or policy – and the individual MP. In an open society like South Africa’s, with a reasonably vigorous press, information will eventually get out. The honesty of individual MPs implicated will severely damaged, as well the institution. Far better to have open disclosure.
   
10. Lastly, when we wrote the original Code we carefully articulated the idea that it was not a tablet of stone that there were elements within it that would require refinement and development over time. It must necessarily be a creature of evolution, though the core principles that underlie it must remain intact. Therefore, I very much welcome the review that you are undertaken and this opportunity to contribute to it.

11. Rule 124 clearly sets out the mandate of the Committee. To my mind, there are two sets of responsibilities. The first – perhaps the Committee’s over-riding task – is to oversee and manage the implementation, operation and enforcement of the Code. The second is more nebulous/less concrete and no less challenging: to develop standards of ethical conduct for Assembly and Council Members and to serve as an advisory and consultative body. This implies that the Committee must play a leadership role, alongside the other main role-players in parliament, especially political parties. In turn, it implies that it must itself develop high standards of integrity and expertise – such that it can perform and assert its functions with confidence and clarity.

Continuity

12. All parliamentary committees benefit from continuity of membership. Members accrue experience, develop expertise and working patterns that encourage consensus rather than conflict. The Ethic Committee is no exception; perhaps even more so, given the subject matter, it needs to find ways to avoid party-political division based not on the merits but on the external self-interest of the particular parties. Equally, we have to recognize the pressures that are put on members of parliament by their parties. One way of both strengthening the hand of the individual MP and to support the development of expertise, is by legislating for continuity by providing the committee with a fixed term of office. In other words, members should be appointed to the Ethics Committee for a full parliamentary term of five years. There may be different ways to achieve this, and there may be practical considerations to take into account, but I believe that the review should encompass the principle of continuity of membership.

13. It can be suggested that either a significant fact or the majority of the members should be composed of members of senior standing in order to reinforce and distinguish the unique position of the Committee so that it commands the respect of Parliament. This is an idea worthy of consideration by us.

The Registrar

14. In both respect of dimensions of the role and function of the Committee, the role of the supporting staff member(s) is as important as that of the members of the committee itself. Although it may not be abundantly clear from the letter of the Code, in 1996 we opted for something of a hybrid. We did not create an autonomous or independent Registrar for the reasons mentioned earlier. But nor did we want to create a Registrar who would be a lap-dog for the Committee. Happily, the appointee to the position has managed to balance the role very skilfully – serving the committee on the one hand, while at the same time showing initiative in carving a more distinctive role, based on accumulated experience in responding to the needs of MPs.

15. Under-girding this role is the idea – that we carefully articulated when devising the scheme and the Committee’s function in 1996 – that the purpose of the system is not to catch MPs out but to support them in dealing with the potential conflicts of interest that will inevitably arise in any pluralistic political system. Thus, most impressive in the development of the operation of the system since 1996, is the practical assistance that the Registrar has provided individual MPs, chasing them to provide responses timeously, double-checking their entries to avoid mistakes, and clarifying ambiguities.

16. My sense is that the current provisions relating to the Registrar – and I note that there is no proposal to change them substantially – deserve further thought: to bring them up-to-date in relation to the actual role the current Registrar has performed successfully and to strengthen her position. As always, we must be mindful that individuals can come and go. It should be clearly articulated that while the Registrar exists to support the work of the Committee, she or he has certain functions that can be performed independently. The way to design this is to set out these elements and make it clear that the Registrar is accountable to Committee in the performance of them. The Committee itself would be strengthened by such a revision.

17. In making these comments, I note that the trend in most jurisdictions is towards greater, levels of external review. However, it would be premature or inopportune to propose any form of external review at this stage and may be worthy of consideration at the next review. I am satisfied with the present system, at the present conjunction of events and parliamentary attitudes.

Enforcement

18. The most tricky area for any Code and any Committee is that of enforcement. It is where the wheels of the system hit the tar road of real politique. Sufficient experience has now been accrued by the Committee since 1996 to assess the weaknesses and strengths of the enforcement model. The fact that there is no provision for expulsion of a member who has defied the Code is perhaps the greatest weakness. The Committee needs sharper teeth to deal with individual MPs who refuse to comply with their responsibilities under the Code. The threat of a fine may not be sufficiently weighty a sanction: expulsion is a far more credible way of ensuring compliance. Without such strengthening, there is a danger that the Committee, in the context of the self-regulation, will be regarded by the public as weak and ineffectual.

19. In terms of the decision-making process, the Committee will often face a difficult challenge in following a procedure that is fair to the individual MP who subject to a complaint or investigation and the need to protect parliament and the public interest, and in finding an appropriate balance between the two considerations. It is agreed that the approach of fairness should be the guiding principle.

Post-Employment Regulation

20. Recent cases here and elsewhere show the importance of covering the period immediate after an MP or Minister has left office. The most tempting distractions from public duty can occur when the individuals is eyeing up his or her next career. The case for regulation is very strong. The ideas contained within the revised draft Code are, therefore, welcome. The problem is enforceability. The Code only applies to MPs while they are MPs. Once they have left ‘the club’, the Code is unenforceable. Individual prepared to flout the spirit of Code will note this, and thus the Code will have no meaning for them. While the new provisions represent a good start, I firmly believe that the Committee must recommend to parliament that the post-employment part is legislated as soon as practicable.

21. The last point about the content that is relevant to the work of the Committee and its evolving role concerns the confidential part of the Code. There were particular reasons why we chose to include such an extensive provision for confidential disclosure. By definition, confidentiality undermines the principles of transparent, public disclosure. It can be justified only with exceptional contextual factors, such as those that were present during the first part of our transition – for example "security" concerns related to the actual address of the property to be disclosed. I note that there is no proposed change to the confidential part of the disclosure requirements. The Committee needs to consider very carefully whether the original reasons for confidentiality still apply. In the case of the actual value of the shareholding or other corporate financial assets, because it is the weight, and not just the existence of the potential conflict of interest that is important, serious consideration should be given to revision. Clearly, a potential conflicting private interest worth R10 is far less damaging to the public interest than one that is worth R10m. Lastly, once again, the danger is that confidentiality could undermine public confidence in the system as a whole.

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