Anti-Corruption Bill is not a Conduct of Public Officers’ Bill

Kwabena Fosu-Mensah argues that the Anti-Corruption Bill should not be published as Conduct of Public Officers’ Bill. He sheds light on the difference between conduct and corruption and clarifies that corruption is an aspect of conduct and not the other way round.

Parliament has drafted a Conduct of Public Officers' Bill which aims to provide a coherent and harmonised anti-corruption legislation. The bill incorporates the Criminal Offences Act of 1960, Act 29, Whistle Blowers Act, Anti-Money Laundering Act, The Financial Administration Act of 2003, Act 654, The Public Procurement Act of 2003, Act 663, The Internal Audit Agency Act 2003, Act 658 and the Audit Service Act 2000, Act 584. The bill also deals with the issue of conflict of interest.

Although the bill seeks to provide legal backing to the government’s Code of Ethics for all government appointees, it is, to all intents and purposes, an anti-corruption legislation bill. It should therefore be published as such and not as Conduct of Public Officers’ Bill. Conduct includes but is not restricted to corruption.

Code of conduct as defined in the Advanced English Dictionary is a set of conventional principles and expectations that are considered binding on any person who is a member of a particular group.

In Wikipedia, a code of conduct is defined as a set of rules outlining the responsibilities or proper practices for an individual, party or organisation.

In the 2007 International Good Practice Guidance – “Defining and Developing an Effective Code of Conduct for Organisations” – the International Federation of Accountants provided the following working definition:

“Principles, values, standards, or rules of behaviour that guide the decisions, procedures and systems of an organisation in a way that a) contributes to the welfare of its key stakeholders, and b) respects the rights of all constituents affected by its operations”.

A code of conduct should therefore be defined as a set of conventions rather than law. It is generally accepted that there will always be the need for a code to evolve. Naturally, it will then have to be updated and revised from time to time and even frequently, making it more unsuitable for legislation. The implication of legislating a code of conduct is that unless there are enough legal safeguards, any time a change of the code is required the law will also have to be amended.

Corruption, on the other hand, is defined variously as:

• a dishonest or fraudulent conduct by those in power, typically involving bribery. (Oxford English dictionary)

• wrongdoing on the part of an authority or powerful party through means that are illegitimate, immoral, or incompatible with ethical standards. Corruption often results from patronage and is associated with bribery. (Business dictionary)

• dishonest behaviour by those in positions of power, such as managers or government officials. Corruption can include giving or accepting bribes or inappropriate gifts, double dealing, under-the-table transactions, manipulating elections, diverting funds, laundering money and defrauding investors. One example of corruption in the world of finance would be an investment manager who is actually running a ponzi scheme. (Investopedia)

Forms of corruption vary, but include bribery, extortion, cronyism, nepotism, patronage, graft, and embezzlement. Corruption may facilitate criminal enterprise such as drug trafficking, money laundering, and human trafficking, though is not restricted to these activities. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by private persons or corporations not directly involved with the government. (Wikipedia)

Political corruption is the use of powers by government officials for illegitimate private gain. An illegal act by an officeholder constitutes political corruption only if the act is directly related to their official duties, is done under colour of law or involves trading in influence.

In view of the generally accepted definition of what a code of conduct is, the Bill cannot pass for a Conduct of Public Officers’ Bill; it is an Anti-Corruption Bill.

Apart from the need to change the name of the Bill to Anti-Corruption Bill, the Bill as it stands now would benefit from the following amendments:

(1) CHRAJ should be made to concentrate on human rights and not on what can be properly considered as ethics.

(2) CHRAJ is a quasi-judicial body with subpoena powers. It is not the right body to deal with conventions.

(3) Contrary to the impression created by the Attorney-General and Minister of Justice in paragraph 4 of page iii of the Memorandum to the Bill regarding Article 287 of the Constitution, it is unclear whether CHRAJ’s powers really stretch beyond conflict of interest, non-declaration of assets and illegal acquisition of wealth. Conduct goes further than these three areas.

(4) The subjectivity of expected behaviour/performance makes several clauses of the Bill unsuitable for legislation. For example, if CHRAJ is going to be asked to investigate a complaint against a public officer for inappropriate standard of dressing or hygiene or for not treating someone else with courtesy and respect or for not performing his/her functions …efficiently, there would millions of backlog cases for CHRAJ to deal with.

(5) Breach of code of conduct should be handled first internally by each institution via e.g. standards committee, and, if all fails, by reference to an independent national body with clear ethical standards responsibilities.

(6) A new independent body, e.g., Ghana Ethical Standards Board (GESB), may be more appropriate to oversee ethical governance in general including code of conduct. As part of its functions, GESB should determine the guiding principles for a model code of conduct for adoption by public institutions with the flexibility for each institution to add not more than (say) three to five principles which are relevant to their own specific circumstance. A model code of conduct should be built on some general principles proposed by the independent body in consultation with leading public institutions and independent bodies with relevant expertise.

If a new independent body with clear ethical standards brief is not feasible at this present time and if the functions of CHRAJ will really include investigation of breach of code of conduct, the Act establishing CHRAJ should be amended accordingly. In addition, Chapter 24 of the Constitution should be amended to embrace the full scale of code of conduct and not be restricted to conflict of interest, non-declaration of assets and illegal acquisition of wealth.

Whichever way, that needs both political will and courage. If Ghana was able to change from driving on the left to the right, Ghana should be able to amend the relevant chapter of the Constitution and the functions of CHRAJ.

The author is an ethical governance expert