Proposed code of conduct for top officials lacks specificity

-transparency group

Transparency Institute Guyana Inc says that the government’s proposed code of conduct for top officials lacks specificity and this deficiency appears as low commitment to integrity in public office and it can ultimately impede the effectiveness of the Code and erode public confidence.

A statement from TIGI follows:

TIGI was invited by the Honourable Prime Minister Nagamootoo by way of a letter dated February 27, 2017 to review the proposed amendments to the Integrity Commission Act and Code of Conduct for Ministers of Government, Members of the National Assembly and Public Office Holders as a means of contributing to the ongoing effort to update the instrument. We concluded this review on April 3 and submitted our comments to the Prime Minister. Our review highlighted several issues which we wish to bring to the attention of the general public.

Powers and Responsibilities of the Integrity Commission
Before launching into the review, it is important to clarify that the Act does not give the authority or power to the Commission to impose sanctions on Ministers or any other public officials. The main responsibilities of the commission are to conduct investigations whenever complaints are submitted and to obtain disclosures of assets and finances of Ministers and their immediate families within specified timeframes of taking office and each year. In fact, Ministers are required to disclose assets and finances and to do otherwise is unlawful. That the Integrity Commission is non-functional and has been for some time is a grave shortcoming that should be addressed immediately.

Whenever the public officers do not honour their obligations with respect to disclosures a tribunal could be set up to investigate. Whenever there are complaints from citizens, the Commission would investigate. It would then submit a report and recommendations to the DPP for determination of whether or not criminal proceeding are warranted. The Commission may also submit a report to the relevant body responsible for disciplinary action for whatever actions that body deems necessary.

Three other important issues to understand are that:
(1) Whenever a report is submitted to the DPP, that individual must submit a report to the President and the Commission about actions taken against the individual pursuant to the report from the Commission.
(2) The disciplinary body to whom the Commission submits recommendations is not specified in the principal Act.
(3) The nature of the disciplinary actions to be taken is determined by the relevant body responsible for disciplinary action even if the Commission made recommendations.

Ultimately, the Commission has no power to determine any courses of actions to be taken against individuals and there are no guarantees that its recommendations will be executed under the Act. However, TIGI believes that disciplinary actions should be undertaken pursuant to the recommendations of the Commission when explicit articulation in the Code of Conduct is absent. We address this issue again in relation to the Code.

Amendments to the Principal Act
The Principal Act was amended minimally to include a “symbolic gift” as a gift. However, TIGI went beyond this to further review the Principal Act. This lead to two suggestions on important amendments and identification of a few other issues based on their links to the Code of Conduct (Schedule II of the Act). We deal with the two main suggestions here and defer dealing with the other issues to the subsection on the Code.

A complaint about a public official may be made in person or by means of a registered mail to the Commission. However, the Principal Act includes a terror clause. Section 28, subsection 3 specifies a penalty of twenty-five thousand dollars and a prison term of two months for persons who make complaints that are “frivolous, mischievous or spiteful”. It further specifies that the nature of the complaint for which the person is found guilty shall be published in a daily newspaper at the expense of the person. The motivation for this provision can hardly be described in civil terms and any description of it will be a euphemism. It is meant to deter complaints and ignores the fact that the Integrity Commission is responsible for investigating. It provides pre-emptive protection by instilling fear.

Interestingly enough, the next section (section 29) indicates that the Commission will reject complaints that are determined to be frivolous or addresses issue outside of its foci. TIGI believes that this latter provision is enough and we call for complete deletion of section 28 from the Integrity Commission Act.

The second important issue is that the Principal Act, in section 39, confers power on the Minister to make regulations. This is entirely misplaced and inimical to a meaningful integrity legislation as it is contrary to the establishment of the integrity of an independent Integrity Commission. TIGI recommends that regulations be made by instruction or recommendation from the Integrity Commission to the Minister. All references to regulations by the Minister in the Principal Act and the Code of Conduct therefore need to be removed.

The Code of Conduct
The proposed Code seeks to infuse gender balance in the language by using he or she (and his or her) instead of the more traditionally used masculine pronoun (and adjective). It incorporates several revisions and substantial new inclusions that strengthen the Code. Though this attempt at broadening the scope is laudable, we find several shortcomings.

Definitions
The proposed Code incorporates definitions of “ten principles of public life”: accountability, dignity, diligence, duty, honour, integrity, loyalty, objectivity, responsibility and transparency. We highlight some problems with or otherwise make recommendations on the substance of the definitions of integrity, loyalty, objectivity and transparency.

Integrity is defined as “A person in public life and members of his family shall upon assumption of office declare their private interests relating to the duties of the public official, and other interests as required by the Integrity Commission Act and any other law.”

This definition targets conflict of interest, but only samples the requirements of the Principal Act (in Part III, Financial Disclosure). The Act requires disclosures of income, assets and liabilities of the person’s spouse and children and specifies a timetable for such disclosures. The definition therefore dilutes the Act and may create a loophole for avoiding disclosures of assets and income. TIGI advocates firmly for preservation of the intent of the Act through articulation of its full requirements with respect to disclosures in the definition of Integrity.

Loyalty is defined as “A person in public life shall display allegiance to the State and shall demonstrate concern for the well-being of the people of Guyana.”

We recommend a restatement of this definition as follows. “A person in public life shall display allegiance to the State as articulated in the National Pledge, and shall demonstrate respect and concern for the well-being of the people of Guyana by informing them of their rights under the law, by being regularly accessible for consultation with citizens and the media, and by declaring to the Integrity Commission any improper requests or orders from superiors or citizens.”

Objectivity is defined as “A person in public life, in executing public business, shall make decisions based on merit when making public appointments, awarding contracts, or recommending individuals for rewards and benefits.”

We believe that a major challenge to meritocracy is the absence of campaign financing laws and specifically laws requiring disclosure of sources and quantum of such support to politicians and political campaigns. This definition is therefore only partially applicable and its inclusion should be supported by a commitment to addressing political patronage in general which would necessitate establishment of campaign financing laws.

Transparency is defined as “A person in public life shall exercise his or her public decisions and actions with full and frank disclosure and shall provide when demanded by the public an explanation for his or her actions and decisions”
This definition captures elements of both transparency and accountability but it exhausts neither. It should especially amplify timeliness of disclosures to avoid justifying post hoc revelations which are usually done under pressure as “transparent”.

Articles in the Code
The proposed revised Code contains 12 articles. We highlight here a selection of the articles about which we found it necessary to make comments during our review.

Article 3 essentially stipulates that public officials shall not receive gifts that have the potential to compromise unbiased execution of their duties or as rewards. TIGI believes that given the poor state in which Guyana has been with respect to corruption perception over time, it would be fair to establish a policy of accepting no gifts at all (except those on behalf of the state) for at least the next 10 years.

Article 4 of the Code focuses on conflict of interest. In addition to making nonspecific references to timeframes for resolving conflict of interest with phrases such as “as soon as practicable” and “as soon as possible” which can lead to abuse, it confers responsibility on the public official to take reasonable steps to avoid, resolve and disclose any material conflicts of interest that arise or are like to arise. Placing the responsibility on the person in the conflict of interest situation to take reasonable steps to address it may thwart the efficacy of the provision. We therefore recommend that conflict of interest be reported to a relevant body or individual and that a decision on how to proceed be made for that person. This should apply especially in cases where there is a blood relationship or social relationship existing between a decision-maker and the object of the decision.

Article 8 deals with sexual misconduct. However, it references sexual misconduct to performing official duties. We believe that this is an unnecessary and undesirable restriction. Sexual misconduct on or off duty must disqualify anyone from continuing to hold the post as a public official.

Article 12 focuses on breaches of the Code. It identifies the President and the Minister of State (as appropriate) as the relevant authorities for administering disciplinary actions. However, it silent on specific penalties for breaches thereby leaving such determinations entirely up to these individuals.

TIGI believes that penalties for some breaches should be enshrined in the Code so that the efficacy of the Code itself does not rely entirely on the will or caprice of the responsible individuals. This will improve public confidence in the process. The Code itself needs to be fleshed out in much greater detail and we strongly recommend taking guidance from model legislation such as the UN Convention against Corruption.

We also find it necessary to recommend that section 31, subsection (4) of the Principal Act be modified to guarantee that disciplinary actions under the Act will be taken pursuant to the specifications of the Code or to the recommendations of the Integrity Commission in the absence of such prescriptions. TIGI believes that administration of the Code of Conduct which is part of the Integrity Commission Act must require a functional Integrity Commission and this link should be solidified now.

Finally, identification of the Minister of State in Article 12 neglects the potentially temporary nature of this post. The Act itself refers to the “relevant authority charged with the exercise of disciplinary control” and this should be maintained in the Code of Conduct to accommodate the flexible nature of public administration in the country.

Summary & Overview
Overall, the Integrity Commission Act needs to be modified to eliminate the terror clause and remove the power to make regulations from the Minister. It needs to be clear in the Principal Act and the Code of Conduct that the administration of the Code necessitates a functional Integrity Commission, and that disciplinary actions will be pursuant to the recommendations of the Commission unless specified in the Code. In addition, the specific mention of the Minister of State as responsible for disciplinary action in the Code should be removed.

The Code of Conduct itself is very low on specificity and needs to be strengthened especially with respect to specifying penalties for breaches. Though an exhaustive list is impractical, model legislation with a wide range of specific penalties exist and these can be adopted or modified as appropriate. This lack of specificity appears as low commitment to integrity in public office and it can ultimately impede the effectiveness of the Code and erode public confidence.