Transparency Institute Guyana Inc (TIGI) says proposed ministerial powers to make regulations for the Integrity Commission should be expunged along with what it called a `terror’ clause and it has also criticised the proposed Code of Conduct for top officials as weak and low on specificity.
A functioning Integrity Commission and a code of conduct for top officials had been key promises of the governing APNU+AFC but two years after its accession to office it is yet to fulfil these commitments.
The government this year invited comments from various groups on the proposed changes to the Integrity Commission Act and draft code of conduct. In a statement on Saturday, TIGI said that it was invited by Prime Minister Moses Nagamootoo on February 27 to review the proposed amendments and it concluded its review on April 3rd and submitted its comments to the PM.
TIGI noted 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”, it declared.
The watchdog body also homed in on the amendment dealing with how complaints are made to the Integrity Commission which has not functioned since 2006 when its Chairman resigned. Addressing what it called the `terror’ clause. TIGI said “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 Commis-sion is responsible for investigating. It provides pre-emptive protection by instilling fear.’
TIGI noted that the next section (section 29) indicates that the Commission will reject complaints that are determined to be frivolous or address issue outside of its foci and said it believes that this latter provision is enough and that section 28 should be deleted.
TIGI also noted that the Act does not give the 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 receive disclosures of assets and finances of Ministers and their immediate families within specified timeframes of taking office and each year. It said the fact that the Integrity Commission is non-functional and has been for some time is a grave shortcoming that should be addressed immediately.
Turning to the Code of Conduct which the government had promised upon entering office, TIGI lauded the attempt to infuse gender balance but said there were several shortcomings.
It noted that the proposed Code incorporates definitions of “ten principles of public life” and highlighted problems with several of these.
It pointed out that integrity in the code 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.”
TIGI argued that this definition targets conflict of interest, but only samples the requirements of the Principal Act (in Part III, Financial Disclosure). TIGI said that the Act requires disclosures of income, assets and liabilities of the person’s spouse and children and specifies a timetable for such disclosures. The integrity definition therefore dilutes the Act and may create a loophole for avoiding disclosures of assets and income, the watchdog body said. “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”, the transparency body’s statement said.
Loyalty is defined in the code of conduct 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.”
TIGI recommended that it should be: “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.”
Noting that 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”, TIGI said it believed 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. It therefore said that this definition is only partially applicable and its inclusion should be supported by a commitment to tackling political patronage in general which would necessitate campaign financing laws.
Transparency is defined in the code 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” but TIGI said that it should emphasise timeliness of disclosures to avoid justifying post hoc revelations which are usually done under pressure.
Articles in the Code
Adverting to the 12 articles in the code, TIGI said that Article 3 stipulates that public officials shall not receive gifts that have the potential to undermine 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”, the statement said..
Article 4 of the Code focuses on conflict of interest and TIGI said that in addition to making nonspecific references to timeframes for resolving a conflict of interest it confers responsibility on the public official to take reasonable steps to avoid, resolve and disclose any material conflicts of interest.
“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”, TIGI said.
Article 8 addresses sexual misconduct but only refers to while performing official duties. TIGI said 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”, it declared.
Article 12 relates to breaches of the Code and identifies the President and the Minister of State (as appropriate) as the relevant authorities for administering disciplinary actions. TIGI however said that it silent on specific penalties for breaches thereby leaving such determinations entirely up to the President and Minister.
“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”, TIGI stated.
