The Minister of Agriculture’s two sons and his daughter-in-law are reportedly in possession of 7,614 acres of prime gold-mining lands. According to the Leader of the Opposition, this is at a time when there are local miners who applied for lands decades ago but are yet to receive a claim, or a block. The Minister, however, maintains that the lands were acquired through lawful procedures established by the relevant authorities and that his children have been engaged in medium-scale mining for several years.
Considering the above, it would be appropriate for the Guyana Geology and Mines Commission (GGMC) responsible for the leasing of State lands for mining purposes, to issue a clarification statement on the matter. According to the latest report of the Auditor General, GGMC was last audited to 2016 and is therefore eight years in arrears in terms of financial reporting and audit. These audits were strictly in the nature of financial audits and did not review operations of the entity, especially as regards compliance with the provisions of the GGMC Act as well as the Mining Act, despite the fact that the Auditor General is empowered under the Audit Act to conduct performance audits. The Authorities should therefore commission a comprehensive forensic audit of the GGMC by an experienced forensic auditor.
Last week, we began a discussion of Guyana’s Integrity Commission Act 1997. The main purpose of the Act is to secure the integrity of persons in public life through: (i) annual declarations of income and assets and liabilities; (ii) adherence to the Code of Conduct contained in the Act; (iii) investigating any mismatch between the declarations and observable lifestyles of the individuals involved; and (iv) arrange for the prosecution of persons who have violated the Act and its Code of Conduct.
Since the passing of the Act 29 years ago, there were no members of the Commission for a total of 15 years, raising important questions about the seriousness of the effort to hold public officials accountable for possible abuse/misuse of office for personal gain. Indeed, the way the Commission has functioned over the years provides little or no comfort about its role in protecting the interest of the public and minimizing the extent to which corruption is perceived to exist in government. An independent observer is likely to conclude that the exercise of seeking to hold public officials to account for their income and assets and liabilities, is one of going through the motions and a superficial and cosmetic approach in order to give the impression that Guyana has a system in place to combat corruption in compliance with the Inter-American Convention Against Corruption and the United Nations Convention Against Corruption to which Guyana acceded.
So far, we have discussed the main purpose of the Act; appointment and tenure of office of the members of the Commission; financial disclosure; and offences and penalties. Considering the importance of having in place a strong and effective system to hold public officials accountable and the failure of the Commission to execute its mandate fully and effectively for almost three decades, the time is long overdue for a comprehensive review to be undertaken of the legislative framework governing the establishment and functioning of the Commission. This is especially so in view of Guyana becoming an oil-producing nation and where public expenditure has increased five-fold since the extraction of crude oil resources began. In this regard, it would be entirely appropriate for the matter to be elevated to the level of the Constitution, as in the case of the Public Procurement Commission (PPC), though the latter has also proved ineffective in its monitoring of public procurement. Better yet, both the operations of the Integrity Commission and the PPC could be merged to form a single, effective and well-resourced anti-corruption agency, as in the case of Jamaica. The President now has a glorious opportunity to fulfill his promise to have in place a dedicated anti-corruption agency.
The procedures for the appointment of members of the Commission and their tenure of office should also be revisited to ensure that best candidates are selected for appointment, having regard to the requirement for the Commission to function independently and to discharge its responsibilities fairly. The Act specifically states that in the exercise and discharge of its functions, the Commission shall not be subject to the direction or control of any other person or authority. It is not clear whether the members of the Commission function on a part-time or full-time basis, but it would be desirable for them to do so in the latter capacity in order to provide for the most dedicated effort to scrutinizing the nearly 1,000 officials who are required to file annual financial returns with the Commission. Over the years, the Commission has been hamstrung in terms of budgetary allocations and in the recruitment and retention of staff to assist it in the discharge of its mandate. The tenure of office of members of the Commission should also be restricted to say five years, non-renewable as opposed to the present practice where the President in consultation with the Leader of the Opposition can extend for a period as he deems fit which can be renewed. That apart, what happens when there is no agreement between these two officials?
As regards offences and penalties contained in the Act, throughout the history of the Commission, there has not been a single case where sanctions have been imposed on persons who have failed to file a declaration nor is there evidence of investigations being carried out to ascertain completeness and accuracy of the declarations.
In today’s article, we continue our discussion on the subject.
Code of Conduct
Schedule II of the Act contains a Code of Conduct to which all persons in public life are expected to adhere. The Code was revised by Order No. 10 of 2017 dated 12 June 2017 and incorporates ten principles in public life under the following headings: (1) accountability; (2) dignity; (3) diligence; (4) duty; (5) honour; (6) integrity; (7) loyalty; (8) objectivity; (9) responsibility and (10) transparency. Its main purpose is to: (i) assist Ministers, Members of Parliament (MPs) and other public office holders in discharging their obligations to their constituents and the public at large; and (ii) provide guidance on the values – the moral qualities – that should govern the conduct of these officials in all aspects of their public life.
The Code 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 following is an elaboration of the ten principles, known as the Nolan Principles. A person in public life:
1. Shall be accountable to the public for his/her decisions and actions and shall submit himself/herself to scrutiny and criticism. (Accountability).
2.Shall, in the execution of his/her official functions, conduct himself/herself in a manner that is worthy of the respect of his/her peers and the public. (Dignity)
3.Is expected to be effective, efficient, and reliable in the performance of his/her duties. (Diligence)
4.Owes a duty to the public and shall consider himself/herself a servant of the people. (Duty)
5. Shall regard it as an honour to serve in the nation’s highest legislative forum as an MP. He/she has a moral responsibility to preserve the reputation of his/her office. (Honour)
6. Shall declare any private interest relating to the discharge of his/her duties and responsibilities and ensure that this and his/her personal decisions and actions are not in conflict with the national interest. (Integrity)
7.Shall display allegiance to the State and shall show concern for the wellbeing of the persons that he/she was elected to represent. (Loyalty)
8.In carrying out public business, shall make decisions based on merit when making public appointments, awarding contracts, or recommending individuals for rewards and benefits. (Objectivity)
9.Shall have a basic responsibility to take decisions only in the national interest void of any forms of personal gain, or other material benefits for himself/herself, his/her family or friends. (Responsibility)
10.Shall be open about all his/her public decisions and actions and be prepared to provide explanations when so demanded by the public. (Transparency)
Included with the Code are eleven articles relating to: (1) soliciting/acceptance of bribes; (2) discrimination; (3) acceptance of gifts; (4) conflict of interest; (5) use of official influence; (6) handing of classified or proprietary information; (7) use of public property; (8) sexual misconduct; (9) acceptance of entertainment; (10) use of office in an improper manner; and (11) outside employment.
For the purpose of 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. He/she 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 Integrity Commission, and any resolution must be in favour of his or her official duties.
Upon assuming office, a person in public life and members of his/her family must declare their private interests as well as their assets and liabilities with the Commission; and the failure to avoid or declare any conflict of interest may give rise to criticism of favouritism, abuse of authority or even allegations of corruption. Disclosure, however, does not eliminate or remove the existence of a conflict of interest, and it is the responsibility of the Commission to decide whether there are enough safeguards to prevent private interests taking precedence over the public interest and advise accordingly. Suffice it to state that it is the concerned public official, as the servant of the people, who has the obligation to resolve any conflict of interest, and any such resolution must be in furtherance of the public interest.
Any person in public life who is in breach of any of the provisions of the Code shall be liable, on summary conviction, to a fine of G$25,000 and to imprisonment for a period of between six months to one year. However, a complaint has to first be made to the Commission which shall determine whether to proceed with an investigation. Once it decides to do so, the hearing is held in public. At the conclusion of the inquiry, a report is submitted to the Director of Public Prosecutions (DPP), if the Commission considers it necessary. Where the DPP is satisfied, based on the evidence presented, that the person in public life ought to be prosecuted for the offence committed, he/she shall initiate action to bring about criminal charges against the person.
Any person who has reasonable grounds to believe that any person in public life breaches the Code of Conduct may make a complaint in writing to the Commission stating: (i) the particulars of the breach; and (ii) the particulars of the person against whom the complaint is made; (iii) the nature of the evidence that the complainant proposes to produce in respect of the complaint; and (iv) such other particulars as may be prescribed by regulations by the Minister. A complaint to the Commission may be presented in person or may be sent by registered post to the Chairperson.
This is an area of concern in that because of the way the Commission is functioning and more generally for fear of discrimination, citizens would be extremely reluctant to file a complaint with the Commission. The Commission should therefore be empowered to monitor compliance with the Code on its own and investigate areas where it believes there are violations.
To be continued
Discussion