OAS report calls for anti-corruption units, blacklisting steps

A March 21, 2014 report by the Organisation of American States (OAS) has recommended specialized anti-corruption units here and it is also urging new regulations for the blacklisting of contractors in the public procurement system.

The 100-page report compiled following a visit here in October last year by an OAS team conveys the clear impression that it discerned weaknesses in the fight here against corruption.  It also cites the need for whistle-blowing legislation, tougher conflict of interest rules and full submissions to the integrity commission.  It was presented at a March 18-21 meeting in Washington, DC.

The report reviewed Guyana’s implementation of the Inter-American Convention against Corruption and assessed oversight bodies including the National Procurement and Tender Administration Board (NPTAB), the Office of the Auditor General, the Chambers of the Director of Public Prosecutions (DPP) and the Judicial Service Commission (JSC).

For all of these bodies and the Public Service Appellate tribunal, the OAS team urged that they be provided with the financial and human resources to enable them to fully perform their functions. The report repeated on numerous occasions the call for an “articulated anti-corruption strategy”, a clear indicator of the view that there was no lynchpin to government’s fight against graft. It also calls for anti-corruption units in the Guyana Police Force and the DPP.

With respect to the NPTAB, the OAS team called for new regulations to the Procurement Act of 2003 “in order to establish clear, fair and efficient debarment procedures and mechanisms, including pecuniary sanctions, particularly for companies found to have paid bribes…” The absence of debarment and blacklisting procedures a decade after the functioning of the NPTAB has been commented on before by critics here.

The information for this report was compiled during a visit to Guyana in October last year during which the team met with the oversight bodies and non-governmental organisations.

The report spanned a vast number of issues including the functioning of the Auditor General’s office where it said it took note that the Auditor General had only been confirmed in 2012 after being in an acting position for seven years.

“The Committee believes that not having a substantive Auditor General for such an extended period of time does not contribute to the independence and to the strengthening of the oversight body, nor is it fair to the person acting in that capacity”, the report said. Pointing out that it was a constitutional matter, the committee said it was limited to taking note of the situation.

The compromising of the auditor general by the long acting period had been raised by the Transparency Institute of Guyana Inc in its session with the OAS committee.

From its assessment of the audit office, the committee said the Forensic Audit Unit which is responsible for investigating fraud and corruption could be further strengthened.

The  committee also heard from the Auditor General, Deodat Sharma  about the difficulty in the prosecution of fraud and corruption in Guyana.

“In this regard, the Auditor General informed that the Guyana Police Force is the institution legally authorized to gather documents/evidence and that the Audit Office staff works closely with them in the investigation of fraud/corruption cases, accompanying them in the searches/seizures/etc., as well as in drafting reports. As per the Audit Act 2004 requirements, the Audit Office also sends its audit reports to the Office of the Director of Public Prosecutions (DPP), to seek legal advice in criminal matters.

“However, the Auditor General informed that both the Police Force and the Office of the DPP are overloaded with cases and that fraud/corruption cases compete with other serious crimes such as murder, sexual violence and robbery. The Auditor General also stated that fraud cases are usually complex and therefore intimidating to those unfamiliar with the subject (Police and Prosecutors).

“The Auditor General further informed that access to bank account information would assist in the prosecution of fraud/corruption cases and that the Audit Act 2004 requires obtaining a warrant from a court in order to obtain such information. However, the Auditor General reported that some magistrates require a criminal charge to have already been filed in order to issue such a warrant.

“In light of the situation described above and in the absence of detailed information regarding the final outcome of the fraud/corruption cases investigated by the Audit Office, the Committee believes the country under review should consider strengthening its ability to prosecute fraud/corruption cases, especially those of greater importance or complexity, whether due to the level of the government official involved or the amount of economic injury to the State.

“To this end, the Committee believes Guyana would benefit from establishing an articulated anti-corruption strategy, which could include the establishment of specialized anti-corruption units in the Guyana Police Force and in the Office of the DPP”, the committee asserted.

The OAS committee also alighted on the lack of coordination of oversight and enforcement agencies.

It said that the DPP, Shalimar Ali-Hack  had told the team that in most cases police send files to the Chambers after charges are instituted and this sometimes resulted in charges that were weak and that were eventually dismissed. Further, she said, there is also a problem with the police nor forwarding some files.

“In light of the above, the Committee believes that coordination mechanisms between the Guyana Police and the Office of the DPP should be implemented, in order to establish settled procedures or guidelines for directing investigations related to acts of corruption, so earlier collaboration can be carried out and legal advice provided before a charge is instituted. This would ensure, for example, that legal advice is given during the course of an investigation with respect to drafting a charge, obtaining wiretaps or search warrants, and other pre-charge issues”, the report said.

The Committee further noted the perceived lack of coordination with other bodies.

“For instance, during the on-site visit the DPP informed that her Office had never received any request for legal advice from the Integrity Commission, which is in charge of ensuring the integrity of persons in public life through their compliance with the provisions of the Integrity Commission Act No. 20 of 1997.

“Additionally, the DPP informed that no files from the cases resulting from the initiative “I paid a bribe – Guyana” of the Ministry of Home Affairs had been forwarded to the DPP’s chambers. The Committee observes that the establishment of such a “hotline” did not seem to have been a coordinated effort among all the oversight bodies. It is also unclear whether the initiative, which was instituted in May 2013, is still in place”, the report said.

Local observers have queried the impact of this site and whether it has produced results. The website was mentioned in Monday’s budget presentation by Finance Minister Dr Ashni Singh.

 

91 cases still pending

 

Interested in the amount of corruption charges instituted over the years, the committee asked for information from the police force.  It was told by the police force that between 2008 and 2012 the police force had instituted 94 charges for corrupt transactions and there were three convictions but 91 of the cases were still pending.

From reading reports of the office of the DPP for 2008, 2009 and 2010, and the view of the Auditor General, the committee says it appeared that there were no indictments of acts of corruption in  the High Court, neither were cases heard by the Court of Appeal or the Full Court.

The committee then repeated its call for the specialized anti-crime units and called for more information on corruption charges.

“…based on the information provided by the Guyana Police Force, the Committee observes the low number of convictions as compared to the number of corruption-related cases pending in the courts in the past five years. In this regard, the Committee notes that in the interest of transparency and accountability, the judicial branch should maintain and publicize information with respect to the total number of cases regarding acts of corruption investigated that were ready for a decision to be adopted in each of the past five years; the number of decisions adopted in connection with them; the number of those decisions in which responsibility was established or penalties were imposed; the number of those decisions in which no responsibility was found or acquittals were given; and the number of those decisions involving the extinction of the punishment or responsibility because of the triggering of the statute of limitations, on types of corruption offences”, the committee said.

The committee noted that one of the functions assigned to the NPTAB pending the setting up of the Public Procurement Commission was the adjudicating of debarment proceedings.  However, the NPTAB told the team in October that this will not materialize until a comprehensive regulation on the matter comes into effect.

The committee issued the following recommendations: ”Issue new regulations to the Procurement Act 2003 in order to establish clear, fair and efficient debarment procedures and mechanisms, including pecuniary sanctions, particularly for companies found to have paid bribes to any Guyanese government official or public servant, while ensuring that safeguards against the abusive or unjustified application of the debarment penalty are in place.

“Maintain and publish a permanently updated list of debarred companies and individuals in the Official Gazette as well as on the National Procurement and Tender Administration website and require that entities in all three branches and in every sphere of government verify the list before awarding contracts to bidders, suppliers, contractors and/or consultants”.

The OAS procedure under which the team visited is known as the Mechanism for follow-up on the implementation of the Inter-American Convention Against Corruption.

Guyana already faces a low rating in several key international indices in respect of its fight against corruption.

 

 

 

 

 

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