Wouter Smulders | Jun 03, 2022

Safeguarding the integrity of councillors and senior managers in local government

On 12 April 2022, the Dullah Omar Insitute (DOI) convened a webinar on 'Safeguarding the integrity of councillors and senior managers in local government'. The webinar, which was supported by the Hanns Seidel Foundation, had a panel consisting of Prof Jaap de Visser (Director: DOI), Dr Phindile Ntliziywana (State Law Advisor: Eastern Cape Provincial Government) and Ms Phatima Rawat (Associate: Ethics Institute).

The webinar was moderated by Prof Tinashe Chigwata and Dr Shehaam Johnstone from the DOI. Prof Chigwata kicked off the webinar and stated that the webinar is the first of many organised in 2022 dedicated to local government. He indicated that the webinar provides an opportunity to discuss one of the most debated issues in local government, i.e. the integrity and professionalism of councillors and senior managers. 

Prof Jaap de Visser
Prof De Visser was asked to provide an introduction and critique of the legal framework for safeguarding ethical conduct of councillors and senior managers in local government. He started his presentation by providing an overview of the legal framework for safeguarding the integrity of councillors and officials in local government. He drew from the Report Combating Corruption in Local Government in the Western Cape, which he co-authored with Jennica Beukes, Thabilie Chonco and Tinashe Chigwata. This research report, based on interviews with practitioners, offers insight into the anti-corruption legal framework for local government and how it is implemented in practice. 

Prof De Visser presented selected results from the Report, focusing on corruption or fraud as councillor misconduct. He identified two main approaches of investigating this misconduct, namely (1) a disciplinary approach (through the Code of Conduct for Councillors (Schedule 7 of the Municipal Structures Act) and (2) the investigation and prosecution of corruption as a criminal offence. He remarked that political parties have their own approaches to misconduct too, but indicated the focus of his presentation was on the disciplinary approach in terms of the Code of Conduct for Councillors. He mentioned that the main 'enforcers' of the Code of Conduct are the speaker, the council, and the MEC for local government. Councillors of course also have a huge role to play in conducting oversight and assisting municipalities with detecting and dealing with misconduct. He urged the webinar participants not to interpret the focus of the webinar as an allegation that councillors are more often involved in committing corruption and fraud than in detecting it.

However, Prof De Visser indicated that the research does suggest that some councillors are involved in corruption and fraud, and often behind the scenes. De Visser mentioned, for example, fraudulent travel or reimbursement claims, which are common and the inappropriate use of the dedicated Mayors’ funds. He explained that some of the people interviewed, as part of the research, were of the view that some councillors use their power and status to extract favours. He further explained that the ‘behind the scenes’ involvement by councillors is common in areas such as staff appointments and procurement. He cited some interviewees who narrated how councillors unfairly influence the municipal administration on these matters. He concluded that this can be considered a form of local state capture which is dangerous for the integrity of councillors and the municipality. The trading of confidential information by councillors is also something that occurs frequently. 

As a general observation, Prof De Visser remarked that councillor involvement in serious corruption is often subtle and difficult to detect. There is often no paper trail or other such evidence because these are ‘behind the scenes’ involvements. Only when law enforcement agencies thoroughly investigate allegations, are councillors finally held accountable because a paper trail of money may lead to them (for example).

Prof De Visser continued by explaining that the cost of resisting interference is often high for municipal managers. A municipal manager may put his or her career, finances and personal wellbeing on the line by reporting or resisting an illegal activity. De Visser also outlined several challenges in the enforcement of the Code of Conduct namely; the role of political leadership in the municipality, weaponisation of charges and real or perceived political bias in the enforcement of the Code. 

Solutions are difficult; however, Prof de Visser outlined the importance of; delineating roles and responsibilities, political backing for enforcement, implementing the existing policy and legal framework and more transparency, especially towards the public. Regarding the declaration of financial interests by councillors, Prof de Visser stated that this is a clear requirement in terms of the Code of Conduct. He indicated that financial interests and gifts should be made public, but in practice, this does not always happen mainly because the council does not deem it necessary to publish these interests. This system can be compared to Parliament’s register of Members’ Interests which does work effectively and is easily publicly accessible. 

Dr Phindile Ntliziywana
Dr Ntliziywana presented a critique of the legal framework regarding professionalisation of senior management in local government. Questions have arisen about whether South Africa is following the right legal and institutional approach towards professionalisation of senior management in local government. He outlined several models that have been or can be adopted towards this end: the Statutory Association Model, Generic Qualification Model, Short Term Deployment Model, Performance Management Model and the Standard Setting Model. Dr Ntliziywana asked the question: who is responsible for enforcing the selected model and is this process effective or toothless? 

Secondly, Dr Ntliziywana analysed the current situation and concluded that while the current system is working it has several shortcomings. He stated that the national government is letting municipalities down and this is leading to impunity. The overlapping laws and general confusion that comes from their implementation is a cause for concern. Lastly, he argued that the right approach was perhaps the Statutory Association Model. This model is both effective and efficient as it clearly sets the standards. If existing professional associations are mandated through legislation this could, however, create new opportunities. He further contended that a law reform process to bring professional associations to the forefront is another possibility for increased effectiveness of this approach. 

Ms Fatima Rawat
Ms Rawat spoke on the question: what are the key components of integrity management in local government and what role do councillors and senior managers play in this?  She indicated that she has been working with the Ethics Institute to build expertise in integrity management in local municipalities. She referred to the Local Government Anti-Corruption Strategy which has a vision for the local government sector where leadership is unquestionably committed to high ethical standards, service delivery and good governance, and a sense of openness and accountability. Three strategic objectives stem from the Strategy which operates as a guideline for municipalities:

  • Promoting community ownership,
  • Strengthening municipalities’ resilience against corruption, and
  • Building trust and accountability through effective investigation and resolution 

Ms Rawat indicated that the Ethics Institute has designed a Municipal Integrity Management Framework with the following five principles: leadership commitment, community and ownership, governance structures and capacity, integrity management program and reporting. She outlined what specifically undermines ethical leadership in local government backed up by a survey undertaken by the Ethics Institute. The research shows that in municipalities that have a disclaimer audit the issue is often criminality while in municipalities with clean audit the challenges are more around basic governance issues and not ethical in nature. Essentially the data shows that people are asking for ethical leadership to be revisited.  She argued that local government requires leaders who set the tone, have clean audits, and show strong ethical leadership in their role.

According to Ms Rawat, ethics management and anti-corruption should be managed together because they are so intertwined. This integrated management is outlined in the proposed Municipal Integrity Framework. She also proposed that municipalities undertake risk assessments to determine exactly what undermines a specific institution from being ethical. At the level of council, she stated that there should be an appropriate committee in place which exercises oversight and can act proactively. This is different from the current ethics committees which work reactively.

 
Dr Johnstone facilitated the question and answer segment. Some of the questions that were raised include: (1) has an easier version been written of the Code of Conduct (potentially in other languages)? (2) what makes the detection of irregular acts and corruption in local government so risky? The panel provided answers to these and other questions. It was, however, clear that more platforms are required for further discussions on this topic. In her closing remarks, Dr Shehaam Johnstone stated that the integrity of councillors and senior managers is in a critical state requiring urgent attention. She called upon the activists and general citizenry to act promptly to ensure that there is integrity in local government.

 

By Wouter Smulders, Intern: DOI

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