The Integrity Commission Act, and its amendment and revised Code of Conduct (Part II)

The Kaieteur News carried the results of an interview with Engineer Charles Ceres who expressed the view that contractors executing shabby works should be prosecuted. He was referring to the defective works performed in the construction of the Hope Canal bridge and the Kato Secondary School. In both cases, the estimated cost of the remedial works to be undertaken is approximately 15% of the construction costs. One must also not forget the construction of the building at 44 High Street at a cost of $350 million some nine years ago. To date, the building is not being used because of various defects uncovered. Mr. Ceres was at pains to point out that works on many government projects are certified and passed for payment, but soon after they crumble. He expressed the belief that the penalty clauses attached to contracts are inadequate, and in some cases, are not being used effectively.

Some time ago, the Minister of Public Infrastructure had also indicated his dissatisfaction with the level of competence and professionalism displayed by the majority of local construction firms, resulting in significant delays in the completion of major infrastructural projects. He stated that very often contractors bid for multiple projects, and when the contracts are awarded, they are unable to complete the works in a satisfactory manner.

This column’s assessment of the leakages in public procurement is 15-20% due mainly to: (a) the absence of effective procurement planning; (b) poor selection of suppliers and contractors; and (c) inadequate monitoring and supervision of the execution of projects. That assessment was based on studies carried out several years ago. If a new assessment is to be undertaken, it is very likely that the extent of the leakages has been conservatively estimated. This is particular so, taking into account the concerns expressed by Mr. Ceres and the Minister, and considering also the opportunity cost of delays, costs relating to the termination of contracts and the recruitment of new contractors as well as those relating to legal action and possible payment of compensation. One recalls the case of the Haags-Bosch Landfill Project where there was an out-of-court settlement of G$1 billion to BK International. Similarly, the Court awarded Dipcon US$2.2 million for amounts owing in relation to the Mahaica-Rosignol Road Project.

Recapitulation of last week’s article

We referred to the Integrity Commission Act 1997 that provides for the establishment of an Integrity Commission and for securing the integrity of persons in public life. This is done through the annual declaration of the income, assets and liabilities of persons who perform public functions. We also discussed the key provisions of the Act and referred briefly to the proposal for a minor amendment by the substitution of the words “a State gift or a symbolic gift” for “a State gift” at Section 32.

We had bemoaned the fact that the Commission has not been functioning since 2006 since the Chairman resigned, for want of a quorum. On reflection, given that the quorum for a meeting of the Commission is three (there were only three members, including the Chairman), it may be appropriate to amend the relevant section of the Act to read “a Chairman and not less than three or no more than four other persons”, instead of “a Chairman and not less than two or no more than four other persons”. This is to cater for the unavoidable absence of one Commissioner. The Chairman should also have an original vote and a casting vote in the event of a tie, and provision should be made for the appointment of a Deputy Chairman.

Code of Conduct

Schedule II of the Act establishes a Code of Conduct for all persons in public life. The Code relates mainly to the acceptance of money, property, benefits, and gifts; discriminatory conduct; conflict of interest; disclosure of confidential information; the use of public property; offensive sexual comments; and aiding and abetting a breach of the Code. Any breach of the Code will result, on summary conviction, in imprisonment of between six months and one year in addition to a fine of G$25,000.

The proposed revised Code

The proposed revised Code of Conduct builds on the existing Code and incorporates the ten principles in public life, known as the Nolan Principles. Its main purpose is to: (a) assist Ministers and Members of Parliament and public office holders in discharging their obligations to their constituents and the public at large; and (b) 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, including the general law against discrimination and sexual harassment, and to 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 interests of the nation as a whole, and owe a special duty of care to their constituents, and citizens.

The following are the ten Principles of Public Life as contained in the revised draft Code of Conduct:

Accountability: A person in public life shall be accountable to the public for his or her decisions and actions, and shall submit himself or herself to scrutiny and criticism.

Dignity: A person in public life shall, in the execution of his or her official functions, conduct himself or herself in a manner that is worthy of the respect of his or her peers and the public.

Diligence:  A person in public life is expected to be effective, efficient, courteous and reliable in the performance of his or her duties.

Duty:  A person in public life owes a duty to the public and shall consider himself or herself a servant of the people.

Honour: Members of Parliament shall regard it as an honour to serve in the nation’s highest legislative forum. They have a moral responsibility to preserve the reputation of their office.

Integrity. A person in public life shall declare any private interest relating to the discharge of his or her duties and responsibilities, and ensure that this or her personal decisions and actions are not in conflict with the national interest.

Loyalty: A person in public life shall display allegiance to the State and shall show concern for the wellbeing of the persons that he or she was elected to represent.

Objectivity:  A person in public life, in carrying out public business, shall make decisions based on merit when making public appointments, awarding contracts, or recommending individuals for rewards and benefits.

Responsibility: Persons in public life 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 themselves, their family or their friends.

Transparency: Persons in public life shall be open about all their public decisions and actions and be prepared to provide explanations when so demanded by the public.

Other aspects of the proposed revised Code

Discrimination: The Code prohibits discrimination against any person with respect to terms, conditions and privileges of employment or other official matters because of race, place of origin, political opinion, colour, creed, age, disability, marital state, sex, gender, language, birth, social class, pregnancy, religion, conscience, belief or culture.

Gifts: The acceptance of gifts and other forms of rewards is prohibited, except personal gifts from a relative or friend, or personal gifts given otherwise than as a motive or reward for doing, or forbearing to do, anything in the performance of official functions. This provision does not apply to gifts received on behalf of the State in the performance of official functions, or gifts of a symbolic nature.

Conflict of interest: No person in public life shall: (a) allow private interest to conflict with his or her public duties or improperly influence his or her conduct in the performance of his or her public duties; and (b) allow the pursuit of his or her private interests to interfere with the proper discharge of his or her duties. Any such conflict shall be resolved as soon as practicable in favour of his or her public duties.

Confidentiality of information: Persons in public life shall avoid using their official positions to transmit any information made available to them in the course of their official duties, to benefit themselves, their relations or any other individuals with whom they are associated. They shall avoid compromising themselves or their office, which may lead to an actual or perceived conflict of interest. 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. Persons involved in the procurement process shall declare conflict of interest if they are closely related to, or have, or will likely be perceived to have, beneficial interest in any company or transaction that would result in the award for the supplies of goods and services to the State.

Use of public property: No person in public life shall use or allow the use of public property (including public money), equipment, supplies or services for any purpose other than for officially approved purposes. A person in public life shall use and manage public resources in accordance with any rules and guidelines regarding the use of those resources.

Sexual Misconduct: No person in public life shall: (a) during the performance of his or her official functions, pursue a course of conduct which amounts to offensive sexual comments, gestures or physical contact or other conduct of that kind; and (b) in the course of the performance of his or her official duties, pursue a course of conduct by which he or she exploits his or her position or authority for sexual gratification.

Entertainment: No person in public life shall accept lavish or frequent entertainment from persons with whom the Government has official dealings. For the purpose of the Code, entertainment includes invitation to sporting events and concerts.

Breach of the Code: The authority for the observance of the Code rests with the President in the case of Vice-Presidents and Ministers, and the Minister of State in the case of other persons in public life. A person in public life can be removed from office for contravening any of the provisions of the Code.

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