One of the successes claimed by the government in the recently released "Towards 10 years of freedom" report by the Government Communication and Information System (GCIS) is fighting corruption, the establishment of a Code of Conduct for the Public Service and the host of anti-corruption legislation which has been enacted since 1994.

While there is no doubt that this government has successfully passed a panoply of legislation to deal with corruption, there are still major stumbling blocks with regard to the implementation of such legislation at all levels.

Recently Idasa's Political Information and Monitoring Service-South Africa released its report entitled Government Ethics in Post-apartheid South Africa. The report was the result of eight months of research into the level of implementation of ethics laws at the level of the executive, the legislature and the provinces.

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. The report has found, perhaps unsurprisingly, that implementation and awareness of these laws is uneven.

The vexed question of the introduction of post-employment restrictions for elected representatives in South Africa is also canvassed in the report. Given the ongoing allegations of corruption arising out of the Strategic Defence Procurement Package (commonly known as the arms deal ), it is perhaps an opportune moment to focus on one of the important but often-overlooked recommendations made in November 2001 by the Joint Investigative Team (JIT) in its report.

It recommended that parliament 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. The parliament's Ethics Committee is yet to consider this recommendation.

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 government.
Using their current positions to secure future personal advantage.

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, it must be emphasised that the nature of their work requires them to constantly decide among national, constituency-based, political and personal interests.

So the purpose of such restriction lies not so much in stopping and punishing corrupt public officials, but rather in promoting integrity in government by preventing unethical conduct before it occurs. So the absence of post-employment restrictions for high-ranking officials and office bearers represents a lacuna in the South African ethics regime.

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

It is argued then that it would be inappropriate to restrict ordinary members of parliament from employment after they cease to be MPs. 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 United States 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 government.

There is no doubt the type of post-employment restrictions South Africa will have will be informed by robust debate within parliament and within the executive. Two years ago, the JIT report initiated this debate. It now rests on parliament to pick up the cudgels and legislate on the issue.

By doing so, it will contribute meaningfully to the mosaic of transparent, accountable and responsive governance in South Africa.

Idasa's Political Information and Monitoring Service-South Africa will be hosting a seminar, entitled "Debating ethics in post-apartheid South Africa today". For more information, contact Ilse Toerien at ilse@idasact.org.za

February is head of the Political Information & Monitoring Service-South Africa at Idasa. Banda is a researcher with PIMS-SA.

With acknowledgements to Judith February, Lorato Banda and the Cape Times.