The Sunday Mail
Vision 2030
Allen Choruma
Vision 2030 will remain a dream, a slogan full of sound and fury but signifying nothing, if our public office bearers — who constitute the majority of the workforce in the country — do not hold the highest ethical values and standards exemplified by discipline, integrity, competency, responsibility, accountability, fairness and transparency.
The 2018 Auditor-General’s Audit Report on Public Entities shows that most of our public institutions are slowly “rotting from the head”, from the top leadership, and it won’t be long before that rot spreads to all internal organs (ordinary employees) of such organisations, resulting in their collapse.
Zimbabwe cannot attain Vision 2030 if our public institutions, which currently contribute at least 25 percent of our GDP (at peak 40 percent), are poorly governed and characterised by inept leadership, indiscipline, corruption, abuse of office and looting of public resources.
Zimbabwe has a plethora of laws and regulations that govern the conduct of public office bearers, but in most instances, these are being selectively and ineffectively applied, resulting in proliferation of cases of indiscipline and corruption as highlighted in the Auditor-General’s report cited above.
It should be stressed, however, that while there is a surge in corruption cases in public institutions, not all of them are badly governed, nor are all public office bearers corrupt.
We have many distinguished men and women occupying positions of leadership in public service who are excelling in executing their duties and mandate.
This article is, however, motivated by the overwhelming spate of negative media reports on cases of rampant corruption and misconduct by some public office bearers and adverse findings enumerated in the Auditor-General’s 2018 report.
In this article, the definition of public office bearers is very wide, but is restricted to those occupying leadership positions, who preside over the country’s institutions such as the public service, constitutional commissions, uniformed forces, Judiciary, Government, Legislature, public institutions, parastatals and State enterprises.
Society Expectations
Society expects public office bearers, as leaders, to “trod on high moral ground” than ordinary people.
When one assumes a leadership position in public office, one is expected to observe the highest ethical standards and act in good faith at all times, on and off duty.
Society expects public leaders to set the right behavioural tone at the top and lead by example, on and off duty.
Public office bearers have lately received negative media publicity even on “off-work” issues such as non-payment of utility bills for Zesa and local authorities.
Energy and Power Development Minister Fortune Chasi recently threatened to name and shame top public office bearers who collectively owe Zesa millions of dollars in unpaid electricity bills.
Last week, across the Limpopo, the South African Municipal Workers Union (SAMWU) threatened to name and push for imposition of severe sanctions on councillors who were not paying rates.
Oath of Office
Certain public office bearers are required by the Constitution to take an oath of office before assuming official duty.
This shows the level of responsibility attached to high leadership positions in public service.
Examples of those sworn into office are: the President, Vice Presidents, ministers and deputy ministers, judges, members of Constitutional commissions, members of the uniformed forces, parliamentarians, and so on.
The purpose of an oath of office is not ceremonial. An oath of office is an affirmation or declaration that a person takes before undertaking the duties of public office.
An oath of office should be taken seriously as it gives rise to certain legal obligations to the person making the oath; for example, to abide by the Constitution, laws of the country and various rules and codes of conduct that apply to public officers.
The bar of standard of behaviour expected from public office bearers, who are required to take oaths before assuming office, is very high.
Additionally, society also imposes its own set rules, customs and morals regarding the conduct of leaders in public office.
Ethics
A key tenet of good governance is ethics. Ethics simply refers to a set of values that bind public leaders and are applied in relation to their decision-making, professional conduct, and relationship between themselves and their organisations and the broader society.
Public leaders should demonstrate high standards of ethical behaviour on and off the job; that is to say within and outside organisations they lead.
Ethics makes a difference between leaders who will succeed and leaders who will fail. Non-adherence to high ethical standards leads to corruption, which, in turn, handicaps performance and reputation of public institutions.
Ethical leadership is pivoted on ethical values of discipline, integrity, competency, responsibility, accountability, fairness and transparency.
Public officers should create trust and confidence with their relevant stakeholders and members of the public.
The behaviour of public officers can have both positive and negative consequences, not only on their organisations, but the economy and society as a whole.
Fiduciary Duties
Public office bearers are fiduciaries or, put simply, trustees.
They preside over public institutions as trustees and as such owe fiduciary duties to members of the public, who are collectively “owners” of these institutions.
In other words, public office bearers have both a legal and fiduciary duty to protect the interests of members of the public — the citizens of Zimbabwe.
The common law position is that once a fiduciary relationship is established, it gives rise to fiduciary duties. The person upon whom a fiduciary duty is imposed is called “the fiduciary”.
A fiduciary, under common law, is a person who is obliged and bound ethically to discharge a responsibility of trust towards another.
Fiduciary comes from the Latin word “fiduciaries”, meaning held in trust.
The word is said to have come from two Latin words — fides, meaning faith; and fiducia, meaning trust.
Fiduciary duties are the cornerstone or pillars in corporate governance.
The fullest exposition of fiduciary duties in our common law remains that in the case of Robinson v Randfontein Estates Gold Mining Company Ltd (1921 AD 168), in which Innes CJ remarked as follows: “Where one man stands to another in a position of confidence involving a duty to protect the interests of that other, he is not allowed to make a secret profit at the others expense or place himself in a position where his interests conflicts with his duty.”
The duty of loyalty
The duty of loyalty in simple terms requires office bearers to:
Act in good faith.
Act in fairness.
Protect the interests of the public.
Not engage in transactions that involve a conflict of interest, and
Refrain from doing something that would injure or disadvantage the public entity.
The duty of loyalty requires office bearers not to engage in transactions which involve conflicts of interest.
The Duty of Care
The duty of care, in simple terms, requires office bearers to:
Exercise due diligence.
Pay attention to detail.
Assess information presented in an inquisitive manner before making a decision.
Act in an informed manner, and
Consider all material information before making a decision.
The duty of care does not require office bearers to make correct decisions at all times.
It simply requires them to display common sense and an inquisitive or searching mind, whether the matter under consideration is of a routine nature or involves special situations.
The courts apply the “reasonable man test” legal principle in determining whether an officer has breached the fiduciary duty of care.
This test requires an office bearer to perform their fiduciary duties in a manner that any reasonable officer, under like circumstances and on an informed basis, would have done.
The courts do not hold office bearers liable simply for making wrong or bad decisions. Office bearers are not expected to make correct decisions at all times, but rather they are expected to make rational decisions depending on the circumstances prevailing at the time.
Role of Parliament
Parliament, as representative of the people, should play a visible role in ensuring that public office bearers conduct themselves in a manner that promotes good governance and safeguards public interests and resources.
Parliament, through its portfolio committees, should “red flag” misconduct of public office bearers and ensure that responsible authorities such as the Public Service Commission (PSC) take appropriate disciplinary action where there is punishable misconduct (regardless of whether such misconduct is on or off the job), as long as it violates public service code of conduct and regulations.
This helps maintain high standards of ethical behaviour. Parliament should also ensure the Auditor-General’s reports on public entities are taken seriously and that their recommendations for remedial action are implemented to the letter, without fear or favour, by responsible authorities.
Ultimately, it is Government’s responsibility to ensure that public office bearers are adequately compensated (remunerated), motivated and that in return they maintain highest ethical values and standards exemplified by discipline, integrity, competency, responsibility, accountability, fairness and transparency.
Allen Choruma can be contacted on e-mail: [email protected]
