It might be legal, but is it ethical?
Busani Ngcaweni asks civil servants
The recent Afrobarometer survey, “South Africans see corruption as worsening during President Cyril Ramaphosa’s tenure”, paints a bleak picture of the perception of the behaviour of public officials in SA.
Even as it is tempting to engage the methodological limits (sampling below acceptable scientific standards) of this Afrobarometer survey, and the validity of its conclusions (gross generalisation), it is difficult to spin the reality that public perceptions of the government are very concerning.
Central to the challenges we face is behaviour that many consider unethical among some in the state system. Earlier this month, the government’s own report, on public trust, from the department of planning, monitoring & evaluation, told us that trouble is brewing, with a burgeoning trust deficit.
As the task team looking into the professionalisation of the public service, led by the National School of Government (NSG), is poised to conclude its work, the issue of ethics and morality among elected officebearers and public servants featured prominently in the deliberations.
But what are ethics in SA? And whose ethics? The law and related regulations do not and cannot tell us what to do in relation to many of the dilemmas and decisions we must make in life. Ethics and the law are not the same things. The law sets minimum standards of behaviour, but ethics set maximum standards.
Public officials, like everyone else, have legal and ethical duties. Compliance with the law does not extinguish the duty to act in the public interest and in accordance with the ethical principles of the profession. The rules may allow for a particular action, such as the purchasing of a new car for a political representative; however, if the public institution lacks resources for essential services, it is unethical to do so.
Managers need to exceed legal provisions and make ethical choices. Elected leaders and appointed officials are meant to promote the best interests of all citizens. In the face of criticism, many respond by articulating the legal premise for a decision and do not adequately grapple with the outrage from communities who perceive this as a matter of choice that goes beyond mere compliance explanations. The legal and ethical frameworks are sword and shield in the furtherance of the democratic project, as one colleague put it.
Let me refer to some incidences reported by the media and by way of evidence heard at the commission of inquiry into allegations of state capture as they relate to elected office-bearers and public servants: loans to political parties and individuals, paid holidays, spouses meeting potential service providers and being ferried around at the cost of companies, and officials turning a blind eye to existing prescripts in the workplace.
To establish the wider expectations that our society
has, allow me to cite an example from a different context. In June 2021 Matt Hancock resigned because of his behaviour as health & social care secretary in the cabinet of British Prime Minister Boris Johnson. Did Mr Hancock break the law? No. Did he flout Covid-19 guidelines? Yes, and he fell on his sword. Did he resign voluntarily? No, the public outcry forced him to submit his resignation to a reluctant prime minister.
In essence, he broke Covid-19 social distancing regulations when he was seen kissing a colleague.
This must be viewed in the context of Hancock’s role as the Covid-19 champion in Britain. Kissing a colleague (I believe it was consensual) was not illegal, but his actions were deemed ethically wrong as a senior leader’s behaviour sends out a message that certain behaviour is acceptable when social distancing is regarded as one of the effective nonpharmaceutical defences against the virus.
Many societies view office-bearers and public servants as flag-bearers of a country’s moral and ethical soul. They are expected to be above reproach and be held to the highest standards.
In SA, we are a highly unequal society, hence any form of behaviour that demonstrates conspicuous consumption or a lack of appreciation of what ordinary people go through is subject to broad indignation. Flaunting blue lights, French champagne and slay queens tends to offend the poor, further diminishing public trust as public officials. I call this behaviour democratic indifference — basking in the glory of democracy as others wallow in poverty waiting for their democratic dividend.
A few years ago, government departments and unions partnered with the Ethics Institute of SA to conduct a public sector ethics survey. It showed unqualified people being appointed, victimisation of employees who differed with seniors, inconsistency of the application of the rules, abuse of time and resources, cheating on claims and no consequences for unethical behaviour.
This led to the NSG introducing a free online course,
“Ethics in the Public Service”. It is fast becoming one of the most popular courses of the NSG free online programme, recording over 20,000 enrolments between April 2020 and April 2021, a sharp increase from the few hundred in the previous period.
The custodians of ethics should not only be civil society, the fourth estate (media) and law enforcement authorities. Individuals must take responsibility. And public officials cannot assume that they are fully armed to deal with the varied realities they engage with — ethical issues and matters that cause outrage among poor people go beyond knowledge of what is legal and what is not. Ethics training and professional development are vital for everyone, even if you consider yourself a saint.
But what punitive measures are in place where a person’s conduct is found to be unethical?
For elected office-bearers and public servants to be taken seriously, ethics should not only be a buzzword, it should be institutionalised. A sceptical population will only trust and believe the government’s words on ethics if they are backed up by serious consequences. Society, which has elected office-bearers through their political parties and is paying their salaries, expects nothing less than accountability. Lip service will increase discontentment. Until consequence management is implemented across the public sector, the trust deficit will widen.
To promote justice, we need to speak up and call out unethical behaviour even when it is hiding behind the veneer of legality. Giving people a pass when they do wrong things, even when they are legal, is undermining the likelihood that people will play by the rules. What we need to strive for is that people will act ethically even when there is no law or legal enforcement to bring consequences. Politicians need to exceed legal standards and make ethical choices because they are elected leaders who are meant to promote the best interests of all citizens.