How Private Are The Private Lives Of Public Officers?
This is an important question in current times. Thankfully, our Constitution has some guidance on this issue and it’s not very good news for public officers.
First, let’s define who qualifies as a public officer. The definition provision of the Constitution, namely section 332, defines a public officer as a person who holds a paid office in the service of the State. This covers a wide range of people who work for the State.
The Constitution provides guidance on the conduct of public officers and it does not distinguish between public and private life when it comes to conflicts of interest.
Section 196(2) of the Constitution requires public officers to avoid conduct that leads to conflicts between their personal interests and their public duties. This provision covers conduct both in public and private life. In other words, what you do in your private life must not lead into conflicts with your public duties.
The same provision also requires public officers to “abstain from conduct that demeans their office”. This means public officers must uphold high moral standards. They must avoid conduct that could taint their office. This also applies both to public and private life. It is no defence that it happened in one’s private life.
An analysis of this constitutional provision is that the private lives of public officers are not actually that private. The moment you agree to be a public officer, you also consent to this term of your contract by operation of law.
What it means is that if you are a public officer, what you do in your private life is fair game for public scrutiny. The public have a right to ask questions if any aspect of your private life reveals potential conflicts with your public duties or demeans your office.
The law must, of course, be applied generally and to everyone. It should not be applied selectively. If that happened, it would be unfair selective application of the law. Nevertheless, as has been shown, the private lives of public officers are not really that private.
I have seen people debating these issues lately and heard some declarations that private lives are private. They are indeed private for most people but s.196(2) pulls the veil from the private lives of public officers. They can be examined if there’s suspicion of conflicts or demeaning of public office.
How does this sit with the protection of privacy in the same Constitution? The right to privacy is not absolute. There can be derogations allowed by section 86 and, in any event, this is a constitutional provision whose goal is to promote good governance in public institutions by preventing conflicts of interests.
Some might be surprised that the private lives of public officers are so open to scrutiny. Others might cry foul that this exposes public officers but that is the law at present. It might be said to be the price that one pays for taking up the honour and privilege of public office.