Mixed reaction to PAM Act – part two

In part one of our series we introduced a keenly anticipated piece of legislation – the Public Administration Management (PAM) Act. In part two we examine some of the reactions to the Act, and in the third and final part we will discuss the proposed integrity unit.

In December 2014 President Jacob Zuma signed the PAM Act into law –  which according to the Presidency will “promote a high standard of professional ethics in the public administration”.

Among other provisions, it will regulate the conduct of business with the state; help departments to make better use of staff resources; provide for the establishment of the National School of Government; and establish the Public Administration Ethics, Integrity and Disciplinary Technical Assistance Unit.

Zuma has yet to decide when the Act will come into force.

Parliament’s Portfolio Committee on Public Service and Administration welcomed the signing of the Act in its present form. “The committee views the signing of the Act as a fortifying tool in strengthening the fight against corruption within the public service,” a statement from Parliament revealed.

“While the committee welcomes this law and believes in its future impact, it appreciates the need for a societal effort in fighting the scourge of corruption within the public service,” continued the statement, adding that the signing of the Act signalled the continuing commitment by the government to fighting corruption.

Corruption Watch agrees, but takes a cautious view of the way forward. “The PAM Act offers many positive solutions to mammoth problems in the public service but it is only as good as its implementation. The success of this piece of legislation in addressing the problems which the drafters had in mind largely depends on the political and moral will to achieve its objectives and to follow through on sanctions,” said a representative from the organisation’s legal team.

Negative reactions as well as positive

Not all have been as welcoming, however – the South African Municipal Workers’ Union (Samwu) was “disappointed” by the PAM enactment. The union said it had expectations of the national government to set a precedent of dealing with state resources. “As such, we are concerned by the enforcement of this Act. Although the Act provides for the creation of an integrity unit which will be responsible for the enforcement of this Act, there seems to be no willingness by the state to put in place monitoring mechanisms of other legislation in the country.”

Here Samwu referred to the ministerial handbook as an example of “other legislation”, specifically highlighting the extravagant spending on fancy cars.

Samwu was of the view that the Act was unconstitutional, because the law applied only to public servants and not to political office bearers, for whom it had harsh words – "politicians are responsible for most of the corruption witnessed in government, they are in pole position to influence the direction that government business goes, history has taught us that this is how many politicians have managed to enrich themselves”. 

For this reason, Samwu said, the Act should be extended to include political office bearers.

The Centre for Constitutional Rights (CFCR) also took a dim view of the Act’s compliance with the Constitution, but on another, albeit related, point. It noted that the Act applies to public servants and municipalities but not to organs of state and public enterprises, which, it said in an article written by its director Johan Kruger, is a violation of the Constitution. At the heart of the governance problems seen so often in public enterprises, the organisation added, is the failure to adhere to the Constitution’s section 195(1), which deals with public administration. This section outlines the following steps:

1. A high standard of professional ethics must be promoted and maintained;
2. Efficient, economic and effective use of resources must be promoted;
3. Public administration must be development-oriented;
4. Services must be provided impartially, fairly, equitably and without bias;
5. People's needs must be responded to, and the public must be encouraged to participate in policy-making;
6. Public administration must be accountable;
7. Transparency must be fostered by providing the public with timely, accessible and accurate information;
8. Good human-resource management and career-development practices, to maximise human potential, must be cultivated;
9. Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness, and the need to redress the imbalances of the past to achieve broad representation.

These principles are a constitutional imperative, said CFCR, and they apply – as stipulated in section 195(2) – to:

1. administration in every sphere of government;
2. organs of state; and
3. public enterprises.

The exclusion of this provision from the PAM Act, said CFCR, implies that “the government does not seem to view public enterprises as part of public administration”.

These deficiencies, which seem to exempt politicians while holding civil servants to account, could prove troublesome in the future unless amended.

A significant advance nonetheless

Corruption Watch executive director David Lewis said: "Although disappointed that some tough, innovative provisions of the original bill have not made it into the Act, we nevertheless think that it represents a significant advance.”

The challenge now lying ahead involved implementation, Lewis added.  “We generally have a sound portfolio of anti-corruption legislation but woeful implementation.”

The organisation would be especially careful in monitoring the provision that bars public servants from doing business with the state.  A good first step, said Lewis, would be to amend public procurement regulation and require companies bidding for public sector contracts to declare, under oath, their true beneficial owners.