THE DECLARATION
AGAINST CORRUPTION
I will not pay bribes.
I will not seek bribes.
I will work with others to campaign against corruption.
I will speak out against corruption and report on abuse.
I will only support candidates for public office who say no to corruption and demonstrate transparency, integrity and accountability.
Petition drafted by Transparency International
Eight weeks of monsoon rains, coupled with melting Himalayan glaciers, have resulted in massive flooding across Pakistan, affecting some 33 million of people. About one-third of the country is under water, and many districts are looking like they are part of the ocean. So far, over 1,265 people have been killed, including 441 children, and at least 1,600 injured. A total of one million houses were either partially or fully destroyed, and thousands of miles of roadway washed away or damaged. Initial estimates of the damage are around US$10 billion. According to a Pakistani official, human-induced climate change has amplified the intensity and duration of the extreme weather in Pakistan: ‘This is very far from a normal monsoon – it is climate dystopia at our doorstep. We are at ground zero of a climate dystopia’. So extensive is the flooding that it can be seen from outer space.
Over in the United States, forecasters predicted potentially “record-breaking” heat last week and over the Labor Day weekend in California, with temperatures expected to reach 115 degrees Fahrenheit. This prompted the authorities to issue an excessive heat warning that will affect more than 50 million people. A recent study found that even if the world stopped burning fossil fuels at this point, the build-up of heat in the atmosphere will cause the melting of Greenland’s ice to raise global sea levels by at least 10 inches.
Last week, we began a discussion on the need for the Integrity Commission to get its act together to deal condignly with corruption in government. This is especially in the light of the Chief Justice’s affirmation of the appointments of the new members, following the court intervention sought by the Leader of the Opposition who contended that he was not properly consulted and therefore the appointments were “illegal, null, void and of no legal effect”.
So far, we have traced the functioning of the Commission since the Integrity Commission Act was passed in 1997. For more than a decade, the Commission was without the services of a chairperson without whom meetings could not have been held for want of a quorum. To make matters worse, during the period 2012 to 2018, the Commission remained dormant without any of the members in place. Additionally, annual budgetary allocations over the years were woefully inadequate to enable the Commission to discharge its mandate. This had resulted in the last Commission, appointed in 2018, to restrict its work to the mere monitoring of the submission of the annual financial returns of income, and assets and liabilities of those public officials who are required to file their returns with the Commission.
The above factors have caused us to question the seriousness of successive Administrations in ensuring that a fully functioning Commission is in place as the leading agency in the fight against corruption in government. As we have stated elsewhere, any reform initiative that is not a voluntary act but is insisted upon by external funding agencies as conditionalities for the grant of loans and other forms of assistance, is likely to result in minimal compliance, and in some cases non-compliance. It is in this regard that the functioning of the Integrity Commission must be viewed.
In today’s article, we conclude our discussion on the topic by outlining the key responsibilities of the Commission and assessing the extent to which those responsibilities have been discharged over the years.
Specific responsibilities of the Commission
The Commission’s specific responsibilities are:
(a) To receive and examine annual declarations of income, assets and liabilities of all persons in public life, including those of their spouses and children;
(b) To make enquiries as the Commission considers necessary to verify or determine the accuracy of the submissions, and to request additional information, if needed;
(c) To conduct formal inquiry in relation to a particular declaration;
(d) With the consent of the Director of Public Prosecutions, to initiate prosecution against any person in public life who fails to make a declaration or who submits incomplete information, despite a request for the person to correct the deficiency;
(e) To receive complaints from any person in relation to breaches of the Code of Conduct, determine their merit or otherwise, hold public inquiries in the event a complaint has merit, and submit a report to the Director of Public Prosecutions (DPP) and/or the relevant government agency on the results of the inquiry;
(f) To be provided with information about any gift received by a person in public life that exceeds G$10,000 in value and to determine whether such a gift is personal or State property; and
(g) To submit to the President within three months of the close of the calendar year an annual report outlining the various activities undertaken during the calendar year, including any difficulties experienced in the discharge of the Commission’s functions. The report is to be laid in the National Assembly within 60 days of its issue.
Annual declaration of income, and assets and liabilities
Section 13 of the Integrity Commission Act requires all persons in public life to file annual declarations of income, and assets and liabilities with the Commission in relation to themselves, their spouses and children. Schedule I lists the persons who are required to do so, including the President, Ministers of the Government, Members of Parliament and other senior public officials. To this list must be added all procurement officials regardless of seniority, as provided for by Section 24(3) of the Procurement Act.
Additionally, every person in public life at the commencement of the Act has thirty days within which to file his/her declaration with the Commission. Such a declaration has nothing to do with whether the Commissioners are in place or not. It is, however, not clear whether this aspect of the Act has been complied. In addition, the previous Commission chose not to review compliance with the Act for the backlogged years, which is indeed regrettable. We hope that the new Commission will revisit the issue.
Having received a declaration, the Commission is required to make such enquiries as it considers necessary in order to verify and determine its accuracy. This includes requesting further particulars from the declarant within a specified timeframe. By Section 12, the Commission may retain the services of professionals to assist it in the performance of its functions. Over the years, however, the Commission’s work was stymied by the absence of the relevant technical and professional skills to examine the declarations. This requires the services of professionally qualified accountants with forensic auditing skills. The previous Commission had placed advertisements for the services of such persons. How-ever, the qualification requirements were pitched too low to attract professionally qualified accountants. That apart, the restricted budgetary allocations, if not remedied, will continue to hamper the work of the Commission.
Where a person fails to file a declaration, the Com-mission is required to publish the fact in the Gazette and a daily newspaper. In accordance with Section 22, a person who fails, without reasonable cause, to file a declaration with the Commission, or knowingly makes a false or incomplete declaration of a material nature, 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. While the previous Commission did publish the names of some of the defaulting officials, it failed to take the necessary action to secure the conviction of all persons in default of Section 22.
Powers of prosecution
Section 23 of the Act does provide the Commission with powers of prosecution. However, the approval of the Director of Public Prosecution must first be sought. Additionally, a person cannot be prosecuted five years after he or she is alleged to have committed an offence under the Act if he or she ceased to be a person in public life.
Revised Code of Conduct for public officials
Schedule II of the Integrity Commission Act provides for a Code of Conduct for public officials. The Code was revised and published in the Gazette on 13 June 2017. It specifies that a person in public life:
1. Shall be accountable to the public for his or her decisions and actions and shall submit himself or herself to scrutiny and criticism.
2. 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.
3. Is expected to be effective, efficient, and reliable in the performance of his or her duties.
4. Owes a duty to the public and shall consider himself or herself a servant of the people.
5. Shall regard it as an honour to serve in the nation’s highest legislative forum as a Member of Parliament. He or she has a moral responsibility to preserve the reputation of his or her office.
6. 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.
7. Shall display allegiance to the State and shall show concern for the wellbeing of the persons that he or she was elected to represent.
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.
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 themselves, their family or their friends.
10. Shall be open about all his or her public decisions and actions and be prepared to provide explanations when so demanded by the public.
A conflict of interest arises where a public official makes or participates in the making of a decision in the execution of his or 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 or her private interests or that of a member of his or her family or any other person or entity. 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 addition, a person in public life shall, among others, ‘refuse or relinquish any outside employment, shareholdings or directorships which create or are likely to create a conflict of interest’.
Breach of the Code
Any person who believes that there has been a breach of the Code can file a complaint with the Commission which is obliged to investigate the complaint. If the Commission determines that there is merit in the complaint, it shall hold a public hearing of the matter. At the conclusion of the hearing, the Commission is required to submit a report to the DPP if it considers it necessary, copied to the President. Where the DPP is satisfied that a breach of the Code has occurred, it shall initiate criminal proceedings against the person in public life. Any person in public life who is in breach of any of the provisions of the Code of Conduct 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.
Acceptance of Gifts
Section 32 requires a gift of more than $10,000 to be reported to the Commission within 30 days of its receipt, specifying who the donor is, the approximate value of the gift, and whether it is personal gift or a State gift.
Conclusion
Now that the Integrity Commission has been activated, it should move to the next stages of its mandate by going beyond the monitoring the submission of annual financial returns of those who are required to do so. These include: (i) ensuring adequate budgetary allocation to enable it to effectively discharge its responsibilities; (ii) engaging the services of technically and professionally competent persons to examine the declarations for completeness and accuracy and for possible mismatch between observable lifestyles and the contents of the declarations; (iii) initiate steps to prosecute those who have failed to submit financial returns as well as those who have violated the Code of Conduct; and (iv) examine the backlogged years 1997 to 2017 to identify those persons who have failed to submit returns and take appropriate actions consistent with the requirements of the Act. The Commission should also consider adopting the Jamaican model by integrating the responsibilities of the Public Procurement Commission so as to have in place a single anti-corruption agency.
Finally, it seems inappropriate, indeed ironical, for some of the persons who are required to declare their income, assets and liabilities to the Commission to be the very ones to decide on the allocation of financial resources to this important anti-corruption body. Perhaps, the time has come for the Commission to be converted into a constitutional agency. Also, considering the difficulties over the years for the President and the Leader of the Opposition to agree on the names of persons to serve on the Commission, consideration should be given to having in place alternative model. For example, the President can make the appointment of four members based on a recommendation of recognized and independent civil society organisations, with the President appointing the other member based on his own deliberate judgement.
