MBABANE - Conflict of interest is a criminal offence.
In Eswatini, issues of conflict of interest have been raised but certain emaSwati seemingly appear to be taking the gravity of such matters lightly.
It has been established that others brushed aside accusations that they are conflicted in certain circumstances, or they argue that they are not conflicted at all.
Although he was finally acquitted by Judge Titus Mlangeni, one of the former executives of the Teaching Service Commission (TSC) was arrested in 2013 on corruption related charges.
He was specifically charged with violating the Prevention of Corruption Act (No. 3/2006) for failing to declare his personal interest in a matter that led to the appointment of his wife as a head teacher.
At the time, the Crown had stated that he had allegedly participated in the selection process in his official capacity at the TSC.
Following his arrest, he was suspended from his duties at the Commission.
In his judgment, Mlangeni said: “It is trite that penal statutes are to be accorded a narrow interpretation, for the reason that they adversely affect the rights and liberty of man. In this respect I have been referred by the accused's counsel to the writings of E.A. KELLA WAY, Principles of Legal Interpretation (Butterworths 1995). It is for that reason that I am reluctant to hold that the accused falls within the ambit of Section 27 (1) which refers to a "member" or "employee".
“Contrary to the submission of PW1, the Act makes no reference to "ex-officio" member and I, therefore, reject the notion that the accused should be treated as an ex-officio member of the Commission. If that was the intention, the Act should have so provided.”
The judge expanded: “But, even if I were to hold that he is within the ambit, which I do not, the Crown still has the onus to prove criminal intent (mens rea). There is nothing to suggest that this is a strict liability statute. In the evidence that has been led before me there is no iota that attempts to prove criminal intent on the part of the accused. As a matter of fact, the bulk of the evidence does nothing more than place the accused, passively, at the meeting and, quite tenuously, during preparations for the meeting. I say "tenuously" because the evidence is that the accused does not even prepare the agenda for the meeting. The agenda items come from regional human resources officers, and there was no suggestion that he has a right to add to or take away from the list that he receives. Significantly, there is no agenda item on declarations of interest by those present, and this alone completely negates criminal intent.”
Has the State amassed overwhelming evidence, the executive would have been sentenced to imprisonment for conflict of interest.
According to senior constitutional Lawyer Sipho Gumedze, a conflict of interest is present when an individual's neutrality is compromised or otherwise cannot be guaranteed. This compromise occurs when a person holds a personal stake in a matter upon which they are required to act in an official capacity.
To be conflicted, Gumedze explained, is to have lost that essential neutrality. Fundamentally, a conflict of interest arises when personal interests, affiliations or competing professional duties impede a person's ability to act impartially, he said.
As a matter of legal ethics, a single barrister or solicitor cannot act for both the claimant and the defendant. Turning to Judge Mlangeni’s case, Gumedze expressed his strong conviction that the presence of a conflict of interest had not been ruled out regarding the former TSC executive.
Furthermore, Gumedze noted that the threshold for evidence is elevated when a conflict of interest becomes a criminal matter. He posited that the judge may have required the evidence to be overwhelmingly concrete to ensure that any conviction was firmly grounded in criminal intent.
A closer examination of the country’s legal framework reveals that playing ignorant or dismissing these allegations is a dangerous game that carries severe legal consequences.
The laws of the land are unequivocal that failing to properly navigate a conflict of interest is not merely a lapse in ethical judgment, but a punishable crime.
At the very pinnacle of Eswatini’s legal hierarchy, the Constitution of the Kingdom of Eswatini sets a rigid standard for public integrity.
Section 240 explicitly dictates that designated office holders shall not assume a position where their personal interests conflict or are likely to conflict, with the performance of their official functions.
Furthermore, they are strictly prohibited from engaging in conduct that compromises their honesty, impartiality or integrity, leading to corruption in public affairs or is detrimental to the public good, welfare or good governance.
This constitutional mandate is not a vague suggestion as it applies rigorously to a specific, high-ranking tier of public servants under Sections 240 and 241(1).
Those bound by these rules include the prime minister, deputy prime minister and ministers, as well as members of the King’s Advisory Council and Parliament, including presiding officers.
The net also catches chairmen and members of Service Commissions or Boards, the army commander and deputy, top security brass such as the national commissioner of police and deputy national commissioner, commissioners of customs, labour, His Majesty’s Correctional Services and Taxes. It further binds judicial officers, ambassadors, the Secretary to Cabinet, the attorney-general and deputy, the director of public prosecutions and deputy, heads of government ministries, managing directors of public corporations, and the broader public service as prescribed by Parliament.
To enforce these constitutional principles, the Prevention of the Corruption Act of 2006 operationalises the criminality of conflicted dealings. Under Section 27(1), a member or employee of a public body commits an offence of corruption if they or an immediate family member have a direct or indirect interest in a company or undertaking that the public body proposes to deal with or if the official has a personal interest in a pending decision. If that individual knowingly fails to disclose the nature of that interest or goes ahead to vote or participate in the proceedings relating to that dealing or decision, they have broken the law.
Notably, the Act casts a wide net regarding who constitutes family, explicitly stating that for the purposes of this section, a "member of family" includes a paramour.
Who is a paramour? A paramour is a person’s romantic or sexual partner, particularly an illicit or secret one, such as the lover of a married individual.
The word paramour is used to describe someone in a relationship that is not sanctioned by marriage or social custom.
The law does provide a single, narrow defence under Section 27(2) where an accused person must have first made the fullest possible written disclosure of the exact nature of their interest to the public body and must have been explicitly permitted to participate after that disclosure.
It is understood that verbal dismissals or outright denials of a conflict do not meet this legal threshold.
The strictness is equally severe when it comes to the public purse.
On the other hand, the Procurement Act of 2011 defines "conflict of interest" as circumstances in which the personal interest of an officer, a close relative, or a close associate might benefit directly or indirectly from their official actions. For absolute clarity, the law defines a "close relative" as a parent, spouse, child, sibling, or the parent, child, or sibling of a spouse.
Under Section 60(1)(f), officials involved in public procurement are mandated to always avoid conflicts of interest.
To ensure compliance, Section 62 of the Act delivers the ultimate hammer that non-compliance with the provisions of the Procurement Act is an offence.
As accusations of conflicted dealings continue to swirl in various quarters, the message from Eswatini’s statutes is clear.
Legal eagles advise that brushing aside public concerns, arguing that a conflict does not exist when the law suggests otherwise or failing to make formal, written declarations is a direct path to criminal prosecution.
The Organisation for Economic Co-operation and Development (OECD) has warned that preventing and managing conflicts of interest in the public sector is crucial to help governments strengthen and enhance public integrity.
The organisation, in its analysis of conflict of interest, stated that they can undermine the integrity of public officials, decisions, agencies and governments if such conflicts are left undetected or inappropriately managed.
If conflicts of interest are left unresolved, the organisation further warns that they may ultimately lead to private interests capturing the policy process.
OECD is an international organisation that works to build better policies for better lives.
It draws on more than 60 years of experience and insights to shape policies that foster prosperity and opportunity, underpinned by equality and well-being.
There are different types of conflict of interest.
Financial conflict
The attorney general of New Zealand says financial conflict of interest occurs when an individual stands to gain or lose financially from a decision they make on behalf of an organisation (e.g., holding shares in a vendor or awarding a contract to a business you own).
Relational conflict
Logwise states that relational conflict happens when family ties, friendships or romantic relationships improperly influence professional judgment (e.g. hiring a relative or reviewing a close friend's performance).
Professional (role) conflict
Comply points out that professional (role) arises from competing loyalties or dual roles (e.g. consulting for a competitor or serving on an external Board that does business with your employer).
Informational conflict
Confide Platform states that informational conflict arises when access to privileged or confidential data is used for personal or third-party advantage (e.g. buying stock based on non-public acquisition information).
Sipho Gumedze, a senior human rights and constitutional attorney in Eswatini, says a single barrister or solicitor cannot act for both the claimant and the defendant, noting that the threshold for evidence is elevated when a conflict of interest becomes a criminal matter. (Pic: Mfanukhona Nkambule)