Every action, whether good or bad, has consequences. Good actions will produce honourable results, while bad actions will yield detrimental results. This is the law of Karma from which you cannot escape. Your Karma follows you as your shadow does, wherever you go in this life, and hereafter.
Thought of the day
Last week, we continued our coverage of Guyana’s Integrity Commission Act 1997 at a time when there have been calls from key stakeholders for a comprehensive review of the Act to make it more meaningful and effective. Unlike several other countries, the Commission is hamstrung in its ability to make public disclosure of information of declarants. This is despite the requirement of the two international anti-corruption conventions that Guyana signed on to, requiring having a system in place for the declaration of income, assets and liabilities of persons who perform public functions in certain posts and, where appropriate, for making such declarations public. (Emphasis added.)
So far, we have discussed the main purpose of the Act; appointment and tenure of office of the members of the Commission; financial disclosure; offences and penalties; and the Code of Conduct contained in Schedule II of the Act. The Code was revised in 2017 to incorporate the following ten principles: (1) accountability;(2)dignity;(3)diligence;(4)duty;(5)honour;(6) integrity;(7)loyalty;(8)objectivity;(9) responsibilityand (10) transparency. It is meant to reinforce public confidence in the way persons in public life perform their duties by ensuring that they uphold the law and act with propriety on all occasions in accordance with the public trust and confidence placed in them. They also have a general duty to act in the interest of the nation and owe a special duty of care to their constituents and citizens.
The Commission can only initiate an investigation into a breach in the Code based on a complaint received. Considering the way the Commission has been functioning over the years and more generally for fear of discrimination, citizens would be extremely reluctant to file a complaint. The Commission should therefore be empowered to monitor compliance with the Code on its own initiative and investigate areas where it believes there are violations.
A key aspect of the Code relates to conflict of interest. According to the Code, a conflict of interest arises where a public official makes or participates in the making of a decision in the execution of his/her office and at the same time knows or ought to have known, that in the making of that decision, there is a material beneficial opportunity either directly or indirectly to further his/her private interests or that of a member of his/her family or any other person or entity. The public official must not allow private interests to conflict with his or her public duties or improperly influence his/her conduct in the performance of his/her public duties. Where any such conflict is perceived to exist, the public official must seek the guidance of the Commission, and any resolution must be in favour of his or her official duties.
In today’s article, we conclude our discussion on the subject.
Receipt of gifts
A person in public life who receives a gift worth more than G$10,000 must report the fact to the Commission, stating the name and address of the donor, the description and approximate value of the gift. It is the responsibility of the Commission to determine whether the gift is a personal one or a State gift. The report must be made within thirty days of the receipt of the gift.
Where the gift is material but not intended to be a motive or reward for doing anything in the performance of official functions, the Commission may allow the person in public life to retain it. In other cases, the Commission must inform the person in writing to deliver the gift to the Minister of Finance. Any person in public life who fails to make a report to the Commission regarding the receipt of a gift; or makes a report which is incomplete or false in any material particular; or fails to comply with a direction from the Commission, is liable, on summary conviction, to a fine, which must not be less than the value of the gift, and to imprisonment for three months.
Confidentiality of information
In accordance with Section 35 (1), any information received by any member, or by any officer or other employee of the Commission, in the course of the performance of the functions under the Act shall not be divulged to any person. The only exception is where such disclosure is necessary to exercise or discharge the person’s functions; or to comply with the provision of any written law or the order of any court or for the purpose of prosecution for an offence.
Any member, or any officer or other employee of the Commission who contravenes the provisions of the above sub-section shall, on summary conviction, be liable to a fine of G$25,000 and to imprisonment for two months. Additionally, any person who receives any information, knowing or having reasonable ground to believe at the time when he/she receives it, that it is communicated to him/her in contravention of the Act, shall be guilty of an offence and shall be liable on summary conviction to a fine of G$25,000 and to imprisonment for two months. However, if the person proves that the communication to him/her of the information or anything contained in any document was contrary to his/he desire, he/she would be relieved of any liability.
Annual report of the Commission
Within three months of the close of each calendar year, the Commission is required to submit to the President a report containing an account of the activities of the Commission throughout the preceding calendar year and the difficulties, if any, experienced by it in the performance of its functions. The report, with any explanation as regards any matter stated in the report, must be laid before the National Assembly within a period of sixty days.
We were able to ascertain that the last, and perhaps the only report that was prepared, was in respect of the year 2018. That report was presented to the President. However, we were unable to determine whether it was laid in the Assembly. As a result, citizens have no way of knowing whether the Commission is executing its functions in the manner envisaged by the Act.
We did come across a 13-page presentation by the Commission at the Commonwealth Caribbean Association of Integrity Commissions and Anti-Corruption Bodies Conference held in the Cayman Islands during the period 3-7 June 2019. In that presentation, several challenges were identified, including budgetary and staffing constraints. In particular, there were no investigators, resulting in the inability of the Commission to carry out investigations of declarations where it believed there were mismatches with the declarants’ lifestyle. There were also both non-compliance and late compliance by some public officers, including requests for the submission of additional information.
Recommendations
Having regard to the analysis we have provided in this and the two previous articles on the subject, we make the following recommendations:
1. Elevate the establishment and functioning of the Integrity Commission to the Constitution through an amendment of Article 212 W, allowing for the merger of the Integrity Commission with the Public Procurement Commission (PPC) into a single anti-corruption agency, using the Jamaican model. I propose that the new entity be named “Public Procurement and Integrity Commission (PPIC)”.
2. Repeal the Integrity Commission Act 1997 and replace it with a stronger enabling legislation in support of the constitutional amendment referred to in (1).
3. Incorporate in the new legislation for the Commission to present its budget to the Public Accounts Committee (PAC) for consideration and approval and for the related expenditure to be a direct charge on the Consolidated Fund.
4. As in the case of the PPC, involve the PAC in identifying and recommending to the Assembly the names of persons to serve on the new commission, with the Assembly approving the appointments by at least two-thirds of the voting members. This will mean that the tenure of office of the existing members of the Integrity Commission will have to be terminated. At the moment, there is no PPC in place.
5. Incorporate in the new legislation for members of the Commission to serve on a full-time basis, and their tenure of office is restricted to a non-renewable term of five years.
6. Incorporate in the new legislation the requirement for the Commission to release publicly the declarations of the President, Ministers of the Government and other Members of Parliament.
Discussion