Contract and conscience.

What happens when the social contract and laws cannot guarantee protection?

That memorable aphorism: “Man is born free, and everywhere he is in chains”, penned by the 18^th century French philosopher Jean-Jacques Rousseau, relates to another creation of the Age of Enlightenment – the Social Contract. That concept has survived centuries and still remains the cornerstone of our understanding of the relationship between people and power; between citizens and government, and between the populace and the establishment.

At a practical level the social contract is enforced through institutions, laws and regulations, or, at a superordinate level, by a Constitution. Yet, there is a far larger dimension that goes beyond a contract and without which the social fabric would simply fall apart. It is that dimension which enables you to trust a stranger in a mall and a handshake on an agreement. It’s a dimension only marginally guaranteed in written law, and explains why even in a high crime country like South Africa, where criminals have an 80% chance of getting away with a reported crime, you have a much lower chance of being affected by a crime.

That dimension is conscience. It may be reinforced through values, religion, and enlightenment, but it is that intuitive, perhaps even instinctive thing that sparks an automated action overriding first thoughts and even feelings. Even psychopaths for the most part pay heed to it, albeit in a rehearsed way. As social beings, by far the majority of people do not want to poop on their stoep. And the more they do, the more laws, regulations and prescriptions pour out of parliament or from the Governance office of Mervyn King. But never will they come near to replacing the vital role of individual conscience, or self-accountability.

Even people accountable only to themselves mostly have it. But you could argue that those entrusted by others to have their interest at heart and to be the custodians of their welfare, have to be subjected to a much higher order of accountability than can be captured in a contract. They include business leaders who can no longer behave as if they are accountable only to shareholders.

As Serge Belamant of NET1 discovered when expressing a callous disregard for the problems of his biggest customer and millions of grant recipients; arguably acting purely on conventional business principles and shareholder interest. He not only unleashed a PR nightmare for himself and the company, but invited the pique of one of his biggest shareholders. And now his departure pay-out raises the critical question: can good governance be served when people are rewarded handsomely for non-compliance? (See Moneyweb article here.)

That applies to the unfortunate, much maligned figure of Brian Molefe, former retired/AWOL/fired GCEO of Eskom. For a moment he seemed to have done the right thing back in November of last year when he “stepped down in the interest of good governance.” Until, of course, it became clear that conscience can be considerably eased by a R30 million pay-out and then later that the stepping down was none such. He could have reinforced his “good governance” act if he refused the pay-out (or most of it) and any invitation to return, but now scuttles any interpretation of noble intent by running to the labour court.

The overriding role of conscience over contract was movingly championed by former Finance Minister Pravin Gordhan, when he spoke at the parliamentary enquiry into Eskom and accused some leaders of not only acting out of blatant self-gain, but simply not caring whether they were seen to be doing so. Few could not have been stirred by his appealing to their conscience, an appeal he has repeated since then.

There is a point at which a position held and influence it has on others, have to stand far above the incumbent’s interests or rights. So SOE minister Lynne Brown was at best expedient by defending Molefe on the basis of “innocent until proven guilty.” When a position itself is tarnished or brought into disrepute, then in the interest not of the incumbent but of the position itself, it simply has to be vacated by that incumbent. A subsequent enquiry can at best clear his or her name, and even ensure some compensation, but a return to that position cannot be automatic.

Such a protocol will ensure a very high regard for positions of authority and a no-nonsense approach to governance and accountability. We simply cannot deny that our tolerance of political and business leadership misbehaviour is extraordinarily high compared with many other countries. Without some form of uplifting the self-accountability expectations from positions of authority, and some real pain in non-compliance, the fight against corruption is going to be extremely difficult.

Zero tolerance and an appeal to the higher order of conscience over contract have to apply equally, if not more so to accusers, investigators and social prosecutors. There is a blatant and astonishing level of hypocrisy and expediency in much of what we are witnessing, including the inordinate, often one sided petty political correctness in public discussion and social media. In the end, it does little to create effective accountability and governance, and simply creates opportunities for deflection by those scrutinised and scrutinising.

While we are witnessing a sterling job by the 4-th estate in the Gupta e-mail revelations, the information explosion and chaotic state of media has aggravated the problem. I dealt with this in my recent Moneyweb article “Believe it or not” which need not be repeated, save to say that it is a proverbial Wild West out there, proliferated with intoxicated, trigger happy gunslingers; spreading more rumour and innuendo than fact.

All of this boils down a key essence, the very glue that holds societies together, and without which they descend into anarchy. That is trust – of outsiders in the country; of people in power, and of individuals in each other. 

As long as we continue to trust our neighbours, there is still hope. We saw the power of that manifest in mutual community support during the ravaging fires of the Southern Cape.