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The Integrity Commission report: Evidence of disintegration?

CANUTE THOMPSON

Sunday, July 21, 2019

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Jamaica has had a long history of State corruption, aided and abetted by individuals connected to the State or the party in power. To reduce the scale of corruption the People's National Party (PNP), while in power, drafted the Integrity Commission Bill. This Bill was passed into law by the Andrew Holness-led Jamaica Labour Party Administration.

Many Jamaicans were cynical about the prospects of the Integrity Commission being effective in combating corruption. I was hopeful, as I wrote in a piece entitled 'Leading from the front in combating corruption', published in the Jamaica Observer on May 27, 2018. In the first paragraph of the last section of that article I stated: “Civil society groups seem to no longer exist. But citizens can be assured that the new Integrity Commission Act provides the space for each of us to be part of the fight against corruption.”

In the same article I also cited the comments of the prime minister who, in announcing the names of the members of the commission, charged them to make Jamaica “the least corrupt place on the Earth”.

First annual report – Evidence of disintegration

But the hoped-for assault on corruption that the Integrity Commission was expected to launch in seeking to make Jamaica the least corrupt place on Earth disintegrated even before the commission effectively began its work. Evidence of this disintegration was seen on display in its first news conference on May 13, 2019, when the chair of the commission spent close to an hour discussing personnel details surrounding the employment arrangements of its acting director of prosecution, the former contractor general, Dirk Harrison. The hour-long raking of Dirk Harrison was both an amateur and shameful act of leadership by the commission, but forgiveable, if subsequent actions veered from that course.

The quality of its first report, published on July 12, 2019, has not veered from the course on which the commission started on May 13, and this fact signals the need to start looking for new members to serve on that commission.

The first thing which struck me about this 125-page report is the fact that after over a year an office which has benefited from significant amount of resources has so little to show for it. Harrison called attention to the sleeping at the wheels by the commission, a few weeks ago, when he noted that the commission had not undertaken a single prosecution since it came into being. This issue of the commission's work in failing to undertake corruption prosecutions is, in my opinion, the single-clearest piece of evidence that this anti-corruption agency is not doing its job. This failure is the reason the country's faith in the entity is weak, despite the commissioners being otherwise fine, hard-working people and outstanding professionals.

Full prosecutorial powers – to whom?

The commission has full prosecutorial powers as stated on page six of the report. The report notes further that with these powers, “the director of corruption prosecution is not subject to the direction or control of any person or body in relation to the conduct of his prosecutorial functions…except where the DPP [director of public prosecutions] intervenes”. Yet, at page 46 of the report, the commission indicates that it has established a Corruption Prosecution Committee as a standing committee of the commission. This committee “…represents the commission in its dealings with the director of corruption prosecution”.

My question is: If the director of corruption prosecution is not under the direction or control of any person or body, why should there be a committee interfacing with the director in relation to the execution of his/her work?

The need for answers to this question is even more urgent given what the commission says will be the function of the committee.

According to the report, on the said page 46, the Corruption Prosecution Committee will provide legal advice to the commission on matters concerning acts of corruption and offences committed under the Integrity Commission Act; submit to the executive director quarterly reports on the activities of the division; and perform such other prosecutorial functions relating to acts of corruption as may, from time to time, be assigned to him.

I don't get it.

I just don't get it.

I have several questions:

(1) What is the purpose of a director of corruption prosecution, who is not under the control of anyone, if you are establishing a committee to advise the commission of legal matters? Is this a device designed to control the activities and prosecutorial decisions of the director?

(2) What is the rationale for the committee, and not the director him/herself, to prepare and submit the division's report to the executive director? Is this measure designed to ensure that the things on which the committee (whose function is to represent the commission) reports are only those things the commission wants reported?

(3) What prosecutorial functions would a committee be performing if there is an independent director of corruption prosecution who is under no one's control?

(4) Who does the director represent, as an employee of the commission, given that the commission has set up this committee to represent its interests?

(5) What interests could the commission ever have in any prosecutorial activity such that it would need a committee to represent it?

These mechanisms are likely to simply restrict the independence of the director and makes a mockery of the claim that this functionary is under no one's control. It seems to me that the full prosecutorial powers are being given to a committee, which “represents” the commission, rather than to the director. The commission's focus appears to be that of restricting prosecution rather than leaving the director of corruption prosecution free, as the statute stipulates, to undertake prosecutions. The establishment of a Corruption Prosecution Committee to interface (I would say interfere) with the work of the director of corruption prosecution, is like having the Ministry of Justice establishing a committee to represent its interests in prosecutorial activities being undertaken by the DPP.

The apparent restraint being articulated by the Integrity Commission in relation to prosecution is also seen in its actual performance over the last year. The report states, tersely, on page 43 that “…no prosecutions or criminal proceedings were initiated…” during the 2018/19 period. So, with all the corruption taking place, including the failure of some officials to file reports on time, this anti-corruption body has not undertaken a single prosecution for an entire year. This is unacceptable and does not inspire confidence.

Best practice in anti-corruption

When I examine the report of the Integrity Commission and compare its activities (or lack thereof) with global best practices in anti-corruption, I find that the commission is either amateur in carrying out its work, or deliberately indifferent to carrying out its work in a manner that engenders public trust.

Anti-corruption bodies were first established in Eastern Asia. According to Transparency International, the first anti-corruption commission was set up in Singapore in 1952, followed by Malaysia and Hong Kong. There are over 150 such entities across the globe, many of which are in Africa. One of the features of the anti-corruption bodies in places such as Eastern Asia is their fearlessness. Each week, Greg Christie, former contractor general, tweets news stories of anti-corruption investigations and, yes, prosecutions leading to convictions of high-ranking public officials and sometimes members of the private sector of various countries.

In international best practice, the work of credible anti-corruption entities falls into five categories: prevention, education, raising public awareness, investigation, and prosecution. When one examines the report of the Integrity Commission there is no indication of a philosophy on corruption prevention, nor is there any sense of urgency to educate and raise public awareness, investigate or prosecute. The chairman's remarks address the composition of the commission, the operations of the commission, compensation of commissioners, and prosecutorial powers. But one would expect that in its first report, as should have been the case in its first press conference, the commission would take time to articulate its vision, mission, and purpose, as well as give the country a sense of what it intends to do to execute its mandate of preventing and prosecuting corruption.

The head of the anti-corruption advocacy groups — National Integrity Action, Professor Trevor Munroe; Jeanette Calder of Jamaica Accountability Meter Portal — have both identified that the report lacks transparency, and both are disappointed in several aspects of the report, including the fact that the two Members of Parliament in relation to whom new investigations have been opened concerning possible statutory declaration offences have not been named, and the failure to state categorically whether the prime minister has been cleared in respect of his integrity declarations. One does not sense fearlessness.

Belated updates

In what appears to be a belated discovery of issues on which activities ought to have been undertaken, the report notes on pages 11 to 12 that “…the office of the executive director intends and commits to ensuring that the commission develops and implements programmes which will allow for the realisation of (some) goals”.

The goals listed relate to raising public awareness, overseeing the awarding of government contracts, and building public confidence. The report continues (page 12): “Given the enormous mandate of the Integrity Commission, and the challenges which continue to impede the operations of the commission, the directors recognise that time is of the essence and as such recommit to ensuring that the functions of the commission are effectively implemented.”

This is a curious but also revealing statement which implies that the commission is overwhelmed by the work to be done and is blaming external factors for not getting the work done. But, perhaps thankfully, it is “recommitting” itself. But, more pointedly, the document overall lacks the qualities of an organisational report. The focus of the submission should have been on what was planned, what was achieved, and what explains the outcomes. What is presented are complaints and excuses as well as possible future action, but no timelines or measures of success are indicated, thus one cannot describe it as an action plan.

The mandate of an anti-corruption body is to engage in corruption prevention, education, raising public awareness, investigation, and prosecution. Using this list as a benchmark, my assessment is that, except for investigations which have commenced, hardly much else has been done by the commission for a whole year. The year 2020 will therefore be a watershed year for the commission. For if it does not report and demonstrate that in 2019 it undertook activities consistent with its mandate then the commissioners might as well pack up and go.


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