Last Wednesday was International Anti-Corruption Day, a day when governments, businesses and civil society join hands to renew their commitment to end the devastating effects of corruption on the lives of citizens worldwide. It was also on this day in 2003 that the United Nations Convention against Corruption came in being. Guyana acceded to the Convention in 2008. Next year, there will be a General Assembly Special Session on Corruption (UNGAS 2021), the first of its kind. According to Transparency International (TI), there are three key issues that need to be addressed urgently at this session:
(a) Transparency in company ownership. Since the release of the Panama Papers in 2016, it became clear that large-scale theft of public resources is possible because corrupt officials can hide behind opaque corporate structures. As a result, there have been calls for countries that have not yet done so, to introduce and maintain a central public register of beneficial ownership as a gold standard;
(b) Justice instead of impunity. TI asserts that very often national justice systems are unable or unwilling to hold the powerful to account. In such a situation, corrupt high-level officials have an upper hand and act with impunity; and
(c) Recovery of stolen assets. It is not just enough to prosecute those who have been involved in corrupt behaviour. The assets stolen must be recovered for the benefit of the community that have been robbed.
Last week, we began a discussion of Jamaica’s Integrity Commission which was established in February 2018 through a merger with the two other anti-corruption bodies – the Office of the Contractor General; and the Commission for the Prevention of Corruption. We stated that there are important lessons to be learnt for the upgrading of our anti-corruption laws, and more specifically the functioning of our Integrity Commission. In today’s article, we conclude our discussion on the subject
Establishment of Guyana’s Integrity Commission
The Guyana Integrity Commission Act was passed in 1997 following the coming into being of the Inter-American Convention Against Corruption in 1996 to which Guyana is a signatory. The main objectives of the Convention are: (i) to promote and strengthen mechanisms to prevent, detect, punish and eradicate corruption; and (ii) to promote, facilitate and regulate cooperation among the state parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance.
The Act replaced the earlier legislation of 1991 which was never operationalized. That apart, it took two years for the first Commissioners to be appointed. Since then, the Commission has had a very chequered history in terms of its functioning, especially since the resignation of the late Bishop Randolph George in 2006 as Chairman. This was mainly due to a lack of agreement between the President and the Opposition Leader on the appointment of the other Commissioners as well a court action to stop their appointments. As a result, the Commission remained dormant for more than a decade.
It was not until the appointment of the present Commissioners in February 2018 that the Commission was again activated, mainly through the efforts of civil society. Even then, the Commission’s work remains largely restricted to monitoring the submission of annual financial declarations of Members of Parliament (MPs) and other senior public officials on account of the Commission’s meagre annual budgetary allocation and an authorized staff complement of only eleven employees. At the end of 2018, only 50 percent of the positions were filled. For 2020, the Commission’s budget was reduced from $45 million to $42 million. This state of affairs raises important questions about the seriousness of successive Administrations to have a fully functioning Commission in place to assist in preventing and fighting corruption and mismanagement of public resources, and to hold corrupt public officials to account.
Composition of the Commission
The Act provides for the appointment of a Chairman and not less than two or more than four other members. The Chairman must be a person who is, or was, or is eligible to be a Puisne Judge in the High Court or any other fit and proper person. The other members are appointed from persons who appear to be qualified in experience of and shown capacity in law, administration of justice, public administration, social service, finance or accountancy, or any other discipline. The appointments are made by the President in consultation with the Leader of the Opposition and are for not less than a year. They are nevertheless renewable.
The Commission currently comprises three persons, namely, former Magistrate and retired Land Court Judge Kumar Doraisami (Chair), Justice of the Peace Rabindranauth Persaud (Religious Leader), and Ms. Rosemary Benjamin-Noble (Attorney-at-law). They were sworn in on 22 February 2018. A fourth Commissioner was identified and was to have been sworn in at a later date. However, there was no evidence this took place, and the Commission’s website shows only the above three mentioned persons.
The then Minister of State had stated that while there would be challenges for the Commission to execute its mandate, the right of citizens to accountability and good governance by public officials should be its guiding light. Back in August 2016, the former Prime Minister described the Commission as a “toothless poodle” with “a lot of bark and no teeth”. He indicated that the Government was keen on strengthening the Commission with investigative and prosecutorial powers, and to make it a constitutional body with reporting relationship to, and oversight by, the National Assembly; and that he was examining recommendations for an amendment to the Act. The then President added his voice by stating that the Commission was poorly funded and dysfunctional, and that the intention was to promulgate the necessary legislation to make it functional.
Unlike Jamaica, there are no professionally qualified accountants within the Commission, considering that the Commission’s work essentially involves scrutinising the annual financial returns of MPs and other senior public officials for completeness and accuracy, and identifying any unexplained increases in their financial net worth from one year to the other. The former Prime Minister had stated that:
It is awful that the Commission, where persons in high offices were expected to declare their assets, was headless for several years. It remains so to this day and we need a process by which we can have this important body reconstituted and perform the functions for which it has been established to ensure that we don’t have officials and others benefitting from disproportionate wealth, or ill-gotten wealth, or unjust enrichment.
The Act provides for a quorum to comprise three persons. Considering the Commission’s present composition, if one member is absent, a meeting cannot be convened.
The Commission’s mandate
The Commission is required to administer and enforce the Act which essentially provides for a Code of Conduct for MPs and other senior public officials as well as the declaration of income, assets and liabilities to the Commission. It, however, does not have powers of prosecution. If there is evidence that an offence has been committed under the Act, the Commission can only refer the matter to the Director Public Prosecutions who has the final say as to whether to proceed with prosecution.
Reporting relationship
The Commission is required to submit an annual report to the President within three months of the close of the calendar year. The report is to contain an account of the activities of the Commission throughout the preceding the calendar year and any difficulties experienced by the Commission in the performance of its functions. The report, along with any explanations on any matter contained in the report, shall be laid in the National Assembly within sixty days.
There is, however, no evidence of any report being laid in the Assembly since the establishment of the Commission in 1997.
In the case of the Jamaican Integrity Commission, there is direct reporting to Parliament, and the reporting requirements are detailed and on a divisional basis, such as the number of matters referred to the Commission; the number of investigations undertaken; the number of matters resulting in prosecution; the number of matters referred to the Security Forces; and audited financial statements of the Commission.
Some suggestions for the Authorities to consider
It is evident that Guyana’s Integrity Commission is not functioning effectively, and in the manner prescribed by the related legislation, due mainly to budgetary constraints. The Commission should therefore be made a constitutional body, thereby freeing itself from the shackles of government control. As in the case of the Audit Office, its budget should be considered by the Public Accounts Committee (PAC) and presented to the Assembly for its approval before being incorporated in the National Budget.
As regards amendments to the Integrity Commission Act, we make the following suggestions for consideration by the Authorities:
(a) Have in place a single anti-corruption body through the merger of the functions and operations of the Public Procurement Commission, State Assets Recovery Agency, and the Integrity Commission;
(b) Revise the Commission’s mandate as a consequence of the merger to incorporate the monitoring of the award and execution of Government contracts, powers of prosecution, and asset recovery;
(c) Increase the number of members of the Commission to five, with a full-time Chairperson and Deputy Chairperson;
(d) Outline specific qualifications and experience requirements for the members of the Commission, having regard to the Commission’s revised mandate;
(e) Limit the tenure of appointment of members to five years, non-renewable;
(f) Create the following six divisions within the Commission: (i) Information and Complaints; (ii) Monitoring and Analysis of Declarations; (iii) Monitoring of Contract Awards and Execution; (iv) Investigations; (v) Prosecution; and (vi) Asset Recovery;
(g) Provide for specific qualifications and experience requirements for Heads of Divisions;
(h) Outline the functions of the six divisions and their detailed reporting requirements;
(i) Appoint members of the Commission upon the approval by the majority of the elected members of the Assembly based on the recommendation of the PAC; and
(j) Present the Commission’s annual report directly to the Assembly, the contents of which must be consistent with the detailed guidelines provided for in the legislation.
