15 November 2012

Mozambique: Law On Public Probity in Force ? but Not Yet Effective

Maputo — Mozambique’s Law on Public Probity came into force on Thursday – but the Central Office for the Fight against Corruption (GCCC) admits that key bodies for implementing the law do not yet exist.

Among its provisions, the law states that public servants must refrain from taking decisions, signing contracts, or undertaking any other act, whenever they are in a potential conflict of interests.

The rules and procedures for preventing conflicts of interest are to be established by a Central Public Ethics Commission (CCEP), consisting of nine members – three appointed by the government, three by the country’s parliament, the Assembly of the Republic, and three by the Higher Councils of the Judicial Magistracy, of the Administrative Magistracy and of the Public Prosecutor’s Office.

But the CCEP does not yet exist, and nor do the Public Ethics Commissions which should be set up in all central bodies of the state apparatus.

At a Maputo press conference on Thursday, the GCCC spokesperson, Bernardo Duce, said he did not know why there has been a delay in setting up the CCEP, nor when the new body will be created.

As far as he knew, there was no deadline for establishing the CCEP – and it was not up to the GCCC to instruct other bodies how or when to appoint their representatives to the Commission.

The Mozambican parliament, the Assembly of the Republic, passed the law in May. It thus knew full well that it had to elect three members of the CCEP.

It could have done so in October, when the current sitting of the Assembly began. But the matter is not even on the Assembly’s agenda (though it could be added at any moment).

The law also obliges all elected and appointed political officials to declare their assets. This obligation extends to all judges, all public prosecutors, all managers in the central and local state apparatus, directors of the Bank of Mozambique, senior staff in the Mozambique Tax Authority, managers of the assets of the armed forces and the police, and the managers of public institutes, funds and foundations, of public companies and of companies in which the state holds shares.

There should be thousands of these declarations, which must be deposited with the Attorney-General’s Office (with the exception of declarations from public prosecutors, which will be deposited with the Administrative Tribunal).

But at the moment nobody can obey this instruction because the law also states that the declarations will be made on a form to be designed by the CCEP. Since the CCEP does not exist, neither do the forms on which the assets must be declared.

Duce said the model form should be available within 60 days of the law taking effect – which would be mid-January. With no sign of the CCEP being set up, and with the festive season intervening, it seems most unlikely that this deadline will be met.

The potential conflict of interest most often mentioned is that of members of parliament who also sit on the boards of public companies. The law is very clear – it bans all holders of public office, from the President of the Republic down to village headmen, from receiving wages or fees from other public institutions or companies (except for teaching duties, intellectual property rights or pensions from jobs held in the past).

This means that parliamentarians who hold lucrative positions in public companies must choose – either they resign their parliamentary seats or they resign from the companies. But so far none of them have announced either of these options.

The deputies who ought to make this choice include the chairperson of the Assembly’s Constitutional and Legal Affairs Commission, Teodoro Waty, who is also chairperson of the board of Mozambique Airlines LAM), the head of the Frelimo parliamentary group, Margarida Talapa, who sits on the board of the publicly owned mobile phone company, M-Cel, and Mateus Katupha, who is the chairperson of the state fuel company, Petromoc, but also a member of the Assembly’s Standing Commission.

Asked what measures would be taken against parliamentary deputies who did not give up their other posts, Duce pointed to a clause in the law which states “acts or contracts celebrated in violation of the regime on conflicts of interests, or any other norms of conduct, are subject to annulment, at the request of the interested parties”.

Did that mean that anything a deputy now does as a member of the board of a public company is null and void?

Duce was unable to answer this question, other than to state that deputies who did not give up their other posts would be “in a situation of conflict of interests”, and should be held responsible for their acts.

All public institutions, he pointed out, have the duty to inform their members about the new law. To help them, senior attorneys from the GCCC and from the Attorney-General’s Office have been touring the country, giving lectures on the law to ministries, provincial and district governments and other state bodies.

The GCCC, Duce added “will continue to publicise the law. We are prepared to assist any public body in implementing the law, and in resolving any doubts”.

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