One of the most important resolutions of the recent anti-corruption summit was that post-employment restrictions be enacted through legislation, writes Judith February.

With the national anti-corruption summit over, the time is right to focus more attention on the resolutions agreed to between the government, business and civil society.

While there have been several debates since 1999 on the efficacy of the National Anti-Corruption Forum and its role, there is no doubt use in bringing the three sectors together to exchange ideas on how best to fight corruption.

One of the most important resolutions of the summit was that post-employment restrictions be enacted through legislation.

At present there are no post-employment restrictions which apply to ministers or senior government officials, which makes the move through the revolving door from government to business very easy.

The revolving door has been criticised because many politicians around the world have often taken up positions in companies with which they have had dealings or contacts when in government.

South Africa is proving no different. Over the past couple of years there have been several instances of high-profile individuals moving seamlessly from the government to the private sector.

Popo Molefe, former premier of the North West province, upped the number of politicians moving into the business arena in 2004.

Molefe and former environmental affairs and tourism minister Valli Moosa, for instance, formed an investment house, Lereko, focusing on tourism, mining and financial services.

Molefe thereafter became the chairman of Xantium Technology Holdings.

Its CEO, James Murray, said at the time that Molefe's network would be invaluable in developing "a client base".

In addition, Xantium said it hoped to utilise Molefe's knowledge on the rationale behind the industry transformation charters.

The former minister of justice, Penuell Maduna, also announced that he was leaving the government to take up a position with a prominent law firm, while former communications director-general Andile Ngcaba resigned and subsequently became part of a consortium which bid for a stake in Telkom.

Talk of post-employment restrictions is not new, however. One of the most important, but often overlooked, recommendations made in November 2001 by the Joint Investigative Team report into allegations of corruption relating to the Strategic Defence Procurement Package (the arms deal), in fact, concerned post-employment restrictions.

Urgent steps

In its report, the Joint Investigative Team recommended that parliament should take urgent steps to ensure that high-ranking officials and office bearers, such as ministers and deputy ministers, are not allowed to be involved, whether personally or as part of private enterprise, for a reasonable period of time after they leave public office, in contracts that are concluded with the state.

Post-apartheid South Africa has witnessed a number of initiatives intended to consolidate democracy and to instil, and preserve, integrity in public office.

Laws requiring disclosure exist in the form of codes of ethics at the level of the executive, legislature, provincial and local government.

Post-employment restrictions have been defined as restrictions imposed upon those who leave, retire or resign from public office.

They are designed to ensure that such former public office holders derive no unfair advantage for themselves or for others from:

The confidential information to which they had access while holding public office;
Their former association with the government; and
Using their current positions to secure future personal advantage.

The mischief which is sought to be prevented is, therefore, a conflict of interest. So, such restrictions are not designed to deny those in the government or other public office the right to earn a living once they have left the government.

The South African Parliamentary Code, the Executive Ethics Act of 1998 and other related ethics codes were created to protect the integrity of public office.

The aim is to ensure that people trust and have confidence in those in public office. It has been argued that where regulations do not exist to guide behaviour of public officials it is easier for them to be corrupted or to act unethically.

It is imperative that measures are in place to ensure that conflicts of interest are avoided when public officials leave office, thereby ensuring that the gains accrued through the current codes are not undermined by the conduct of former public officials.

The case for post-employment restrictions should, therefore, be seen as an effort to consolidate the broader codes of conduct and ethics laws currently in operation.

Post-employment restrictions should not be viewed as working from the assumption that elected representatives are inherently corrupt.

Rather, emphasis should be placed on the fact that the nature of their work requires them to constantly decide among competing interests: national, constituency-based, political and personal.

So the purpose of such restriction lies not so much in stopping and punishing corrupt public officials but rather in promoting integrity in the government by preventing unethical conduct before it occurs.

There are several options which one could follow when adopting post-employment restrictions. The type of restrictions adopted in South Africa would very much depend on the socio-political environment which exists and what is practically possible.

There is no doubt that South Africa, while drawing from comparative examples, should draw on its own creativity and experience when thinking of legislating in this area.

Many are of the view that post-employment restrictions should apply to members of the executive only, with an option of extending them to certain key figures in parliament. For example, to chairmen of certain committees.

The proposal to exclude ordinary members of parliament from post-employment restrictions is premised on the fact that the nature of their work does not give them similar powers and control as ministers.

Inappropriate

For instance, although ministers may be involved in deciding who receives tenders in their departments, members of parliament do not necessarily engage in these kind of exercises.

Some argue that it would be inappropriate to restrict ordinary members of parliament from employment after they cease to be members of parliament. In Nigeria, for example, post-employment restrictions are not applicable to members of the legislature.

One of the key challenges when drafting post-employment restrictions is finding a way of drafting a reasonable and implementable set of regulations.

The tricky part of this is deciding on the period of restriction. The US provides a valuable lesson by setting different restrictions depending on the nature of work and the rank of public official.

A common period for restriction is two years. The two-year restriction is based on the assumption that it is a period long enough to render confidential information acquired during tenure irrelevant and outdated.

Post-employment restrictions are applied in other democracies in different ways. For instance, although in Canada some form of restriction exists prohibiting former public officials from taking up employment in the private sector, in the US there is no such restriction, as only specified activities are restricted.

In France, members of the National Assembly may accept outside employment after leaving office provided they do not hold any position in any corporation that is either government-subsidised or primarily undertakes local or foreign government contracts.

Furthermore, in Mexico the law prohibits members, for one year, from accepting or applying for employment in the private sector that is related to their service in the government.

Last year, government spokesman Joel Netshitenze stated that the government was applying its mind to the introduction of post-employment restrictions.

In addition, parliament's ethics committee is mulling over the issue. Whether the recent anti-corruption summit has provided the necessary impetus for action, only time will tell.

Judith February is the head of the Political Information & Monitoring Service at Idasa

With acknowledgements to Judith February and The Mercury.