In last week’s article, we began a discussion on the actions that need to be taken to bring about an improvement in Guyana’s score and ranking on the Corruption Perceptions Index (CPI). Last year, Guyana scored 40, the lowest for the English-speaking Caribbean and the second lowest from among the CARICOM countries. It also ranked 85th among 180 countries surveyed. In 2012, Guyana’s score was 28. Eight years later, it moved to 41. The 13-point increase occurred mainly during the period 2016-2020, when its score moved from 29 to 41. The largest increase was in 2016 when a five-point increase from 29 to 34 was recorded. This enhanced performance was mainly due to several initiatives undertaken, as outlined in last week’s article.
We had stated that, considering these initiatives, Guyana had the opportunity to build on this improved performance if it could continue to intensity its efforts to improve its governance, including transparency and accountability, and ensure appropriate disciplinary actions are taken against those found guilty of undermining such efforts. In this regard, we had estimated that within five years it would have been able to achieve the 50 percent mark on the CPI. Regrettably, events during the period January 2019 to July 2020 marred such efforts.
In today’s article, we continue our discussion on the subject.
Public Procurement Commission
The Public Procurement Commission (PPC) is responsible for ensuring that the procurement goods/services and the execution of works is conducted in a ‘fair, equitable, transparent, competitive and cost effective manner…’. It is required to monitor compliance with the Procurement Act, especially as regards the award of contracts. However, after 15 years since the Constitution was amended to provide for the establishment of the Commission, it was not until October 2016 that the first five members of the Commission were appointed. Additionally, during the 31-month period from November 2019 to June 2022, the Commission remain-ed dormant, as the tenure of office of its members had expired.
The Commissioners are appointed based on a recommendation of the Public Accounts Committee (PAC), and their appointments have to be ratified by at least two-thirds of the voting members of the National Assembly. They must have expertise and experience in procurement, legal, financial and administrative matters. Article 212X (1) makes it clear that for a person to be appointed all four requirements have to be met. As regards the appointment of the current members, the PAC had invited ‘stakeholders, political parties, civil organisations as well as individuals … to submit names of persons to be considered as Commissioners’, with a deadline of 17 May 2021. However, it was not until 1 June 2022 that the present members were appointed.
In view of the requirement of Article 212W (2) for the Commission to be independent, impartial and to discharge its functions fairly, one would have thought that political parties would have been excluded from nominating persons to serve on the Commission. That apart, one may legitimately ask why are persons not requested to apply directly for the position? What procedures does the PAC follow in identifying the persons for appointment to the Commission? In particular, is there a system of shortlisting candidates and conducting interviews to identify those who were best suited for the position? Without casting any aspersion on the current members, is it coincidental that only persons nominated by the two major political parties are the ones who have been appointed? And did they all meet the job specifications for the position? A similar situation occurred in 2016 when the first Commissioners were appointed. At that time, the Chairperson of the PAC was the current President, and a precedent was set, that is, you approve our nominees and we approve yours. No wonder, the appointment of the candidates on both occasions received unanimous support from the Assembly. But is this the intention of the constitutional amendments?
A key responsibility of the Commission is to investigate complaints from suppliers, contractors and public entities, and propose remedial action. Any decision of the Commission is appealable to the Public Procurement Commission Tribunal, with further appeal to the Court of Appeal. However, no such tribunal is in place, and only five investigative reports were issued since the Commission was activated in 2016. Additionally, although the Commission is required to investigate cases of irregularities and mismanagement, the only one such investigation was undertaken. Article 212CC also requires the Commission to table an annual report of its operations in the Assembly. However, to date there was no evidence that this was done. Furthermore, by Section 54 of the Procurement Act, the Cabinet’s involvement in the procurement process was to have ceased upon the activation of the PPC. However, the Cabinet continues to offer its no objection to the award of contracts in excess of $15 million.
Concerns have been raised over the functioning of the National Procurement and Tender Administration Board (NPTAB) which is responsible for ‘exercising jurisdiction over tenders the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators …, and maintaining efficient record keeping and quality assurances systems’. Section 16 of the Act requires the Board to comprise seven members: not more than five from the Public Service, and not more than three from the private sector after consultation with their respective organisations. The appointments are made by the Minister of Finance for a period of not more than two years. Two members are to serve on a full time basis, with the Minister appointing the Chairperson from one of the full-time members.
The Act is silent on whether the appointments can be renewed. Following the change in Administration in August 2020, new members of the NPTAB were appointed. The Minister of Public Works had stated that the Chairperson’s appointment was a temporary one, considering that the official is a senior official of the Ministry of Finance responsible for monitoring the execution of the Government’s Public Investment Programme. Apart from concerns about perceived conflict of interest, the official was holding two full-time positions at the same time, contrary to Section 16 (4) that provides for the Chairperson of NPTAB to serve on a full-time basis. Twenty-nine months on, the position has not changed. Additionally, concerns have also been expressed that some of members were too closely associated with the political party in government. The term of office of the members of the Board came to an end last September, but there was no announcement as to whether their appointments were renewed.
Some seven years ago, we had estimated that 20 percent of funds expended on public procurement did not represent value for money, through poor tender award; over-priced contracts; inadequate monitoring of the execution of works; substandard works performed; short supply of goods and services; and overpayments to suppliers and contractors, among others. With almost 50 percent of the national budget now devoted to infrastructure development works, the extent of the leakages in public procurement is likely to be higher.
The above observations are enough cause for serious reflection. We therefore urge the Authorities to take appropriate measures be taken to ensure full compliance with both constitutional and legislative requirements regarding public procurement. This is an area that affects most of Guyana’s performance on the CPI.
Integrity Commission and Code of Conduct
The Integrity Commission has had a checkered history since the appointment of the first Commissioners in 1999, especially during the period 2006 to 2017 when it 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 as the tenure of appointment of the two other members had expired, without replacement. The annual budgetary allocations over the years were also woefully inadequate to enable the Commission to discharge its mandate.
On several occasions, we had argued that it is simply not enough for the Commission to monitor the submission of annual financial declarations of public officials and to publish the names of defaulters. The law requires the defaulters to be prosecuted. That apart, the declarations need to be probed for completeness and accuracy as well as for any inconsistency with the lifestyles of the officials involved. There are also penalties for making false and incomplete declarations. In this regard, it would be helpful for the Commission to liaise with the Guyana Revenue Authority to identify any mismatch between an official’s annual declaration and his/her tax returns. The Schedule to the Integrity Commission Act also provides for a Code of Conduct to which public officials are required to adhered. The Code was revised in 2018. However, although there were several instances of violation of the Code over the years, none of these violations have resulted in the prosecution of the concerned officials.
Section 36 of the Integrity Commission Act requires the Commission to prepare and submit to the President an annual report of its activities, which report is to be laid in the Assembly. However, although the report for 2018 was submitted to the President, there was no evidence that it was laid in the Assembly. There was also no evidence of any further report being issued.
This above state of affairs raises important questions about the seriousness of successive Administrations to have a fully functioning Commission in place aimed at assisting in the prevention and fight against corruption and mismanagement of public resources, and to hold corrupt public officials to account.
Now that the Integrity Commission has been activated, it should take the necessary steps to ensure that the Commission is adequately resourced to effectively discharge its mandate before moving to the next stages of its mandate. These include: (i) initiating action to prosecute those who have failed to submit financial returns as well as those who have violated the Code of Conduct; and (ii) scrutinizing the declarations received for completeness and accuracy and taking appropriate actions as necessary. The Commission should also consider making representation for the adoption of the Jamaican model by integrating the responsibilities of the PPC with those of the Commission, so as to have in place a single anti-corruption agency. We believe that such a merger will provide a more effective mechanism for fighting corruption.
It seems inappropriate 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 could be given to having in place alternative models. For example, the President can make the appointment of four members on the recommendations of recognized and independent civil society organisations, with the President appointing the other member based on his own deliberate judgment.
To be continued –
