What the Integrity Commission Act says about the soliciting and acceptance of gifts
In last week’s article, we discussed Transparency International’s (TI) 2020 Corruption Perceptions Index. However, because of space constraints we were unable to complete that discussion. TI had made four recommendations, two of which were already dealt with along with their implications for Guyana. The other two recommendations are:
(a) Defend democracy and promoting civil space: The COVID-19 crisis exacerbated democratic decline, with some governments exploiting the pandemic to suspend parliaments, renounce public accountability mechanisms, and incite violence against dissidents. To defend civic space, civil society groups and the media must have the enabling conditions to hold governments accountable; and
(B) Publish relevant data and guaranteeing access: The publication of disaggregated data on spending and distribution of resources is particularly relevant in emergency situations, to ensure fair and equitable policy responses. Governments should therefore provide citizens with easy, accessible, timely and meaningful information by guaranteeing their right to access information.
Guyanese, and indeed the world, have witnessed how attempts were made in 2019 and seven months into 2020 to thwart the will of the people to elect a government of their choice. These include:
(a) Refusing to accept the results of the 21 December 2018 vote of no confidence in the Government;
Seeking judicial review to the fullest to overturn the Speaker’s ruling;
Violating the Constitution relating to holding of elections within three months of the no confidence vote and in the appointment of a GECOM Chair;
Tampering of the results of the 2 March 2020 elections to show that the APNU+AFC had won the elections instead of the PPP/C; and Challenging the validity of the recount exercise as well as seeking to block the declaration of the winner based on the recount.
There was also evidence that the COVID-19 situation was exploited to prevent accredited international observers from returning to the country to observe the recount exercise.
Guyana’s democracy survived thanks to the efforts of the international community, the diplomatic missions in Guyana, the accredited international observers, the judiciary and other local stakeholders. This is the third time in our post-Independence history that the international community came to our rescue. The first was in 1992 when President Jimmy Carter intervened to restore free and fair elections. In 1998, CARICOM brokered the Herdmanston Accord which saw a reduction of the tenure of office of the PPP/C to three years, and an agreement for constitutional reform, among others. However, we cannot continue to depend on the international community to save the day for us. We need to examine critically and constructively what has happened in the past and take appropriate measures to strengthen our democratic governance, especially as regards electoral reform to bring to an end the current “winner takes all” arrangement and replace it with a meaningful system of shared governance. Recognising that the major political parties derive their support mainly based on ethnic sentiments, whichever party that is elected to office must reach out to the other side of the aisle so that citizens do not in any way feel marginalized, regardless of their political persuasion, civil society activation or independence of thought.
In relation to the fourth recommendation, since the passing of the Access to Information Act in 2013 and the activation of the Commission in 2013, there has been little or no information about its functioning. The Act sets out ‘a practical regime of right to information for persons to secure access to information under the control of public authorities in order to promote transparency and accountability in the working of the Government and public authorities’. Section 44(1) requires the Minister to present to the National Assembly an annual report on
the operation of the Act within nine months of the end of each year. However, to date, there is no evidence that such a report was presented. One hopes that the new Administration will see it fit to remedy this undesirable state of affairs so that citizens can feel confident that they are provided with full and timely access to information on government programmes and activities.
Suspension of the sittings of the Public Accounts Committee
Last Monday, the Public Accounts Committee (PAC) suspended its examination of the public accounts for 2016 to debate a motion for the Chairman to recuse himself from chairing the Committee on two grounds. The first is that during the period 2015-2020 he had received gifts from five agencies for which he had ministerial responsibility, in breach of several aspects of the Code of Conduct contained in Schedule II of the Integrity Commission Act. The second is that Chairman is currently before the Court facing charges based on certain allegations in relation to the award of a contract for the feasibility study of the proposed New Demerara Bridge. Since the latter is sub judice, we shall refrain from commenting on it except to refer readers to two articles dated 2 October 2017 and 20 August 2018 we had done on the subject. (See https://www.stabroeknews.com/2017/ 10/02/eatures/accountability-watch/procurement-of-consulting-services-and-prequalification-procedures/; and https://www.stabroeknews.com/2018/08/20/features/accountability-watch/the-consulting-contract-for-the-proposed-new-demerara-harbour-bridge/).
The Chairman initially denied receiving the gifts but when confronted with evidence that he had done so, he eventually admitted to receiving the gifts. The Chairman’s defence, however, was that he had done nothing wrong as it is a normal practice and that certain other Ministers of the pre-2015 Administration were also in receipt of similar gifts. We have always maintained that acts of wrongdoing or breaches in the Code of Conduct for public officials cannot be justified because similar acts took place in the past without sanctions being imposed against the concerned officials. Apart from the ‘Pradoville 2’ fiasco and charges against certain Ministers in the pre-2015 Administration that were subsequently withdrawn, it will be of interest to learn who were the other officials involved and why no action was taken against them.
The motion referred to above was tabled by the Government members of the PAC after the Chairman refused to step aside as a result of the above two matters. However, the Opposition members of the Committee did not support the motion, and the meeting of the PAC was suspended for the day. It not clear when next the PAC will resume its sittings to examine and report on the backlogged public accounts for the years 2015 to 2019. The PAC’s last report was in respect of the combined fiscal years of 2012-2014 and was issued in July 2017.
The PAC has supervisory responsibility over the functioning of the Audit Office, including ratifying of the appointment of all senior employees; approving the Audit Office’s budget and work plans and programmes; and receiving and considering quarterly and annual reports on the performance and operations of that office. It is also responsible for identifying five suitably qualified persons to serve as members of the Public Procurement Commission (PPC). As stated in last week’s article, the PPC has been without the services these members since October 2020.
The tasks of the PAC are indeed enormous, especially as regards the examination of the backlogged public accounts, including those public corporations and other entities in which controlling interest vests in the State. It is unfortunate that the PAC has allowed partisan politics to take precedence over the national interest. The issue of acceptance of gifts involving the Chairman is a matter that should have been referred to the Integrity Commission. This is not to suggest that we condone the Chairman’s actions which, under normal circumstances, would have required him to step aside to allow for a proper investigation to be carried out. We hope that the PAC will resume its sittings as early as possible.
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. 2. 3. 4. 5.
Shall be accountable to the public for his or her decisions and actions and shall submit himself or herself to scrutiny and criticism. (Accountability)
Shall, in the execution of his or her official functions, conduct himself or her self in a manner that is worthy of the respect of his or her peers and the public. (Dignity)
Is expected to be effective, efficient, and reliable in the performance of his or her duties. (Diligence)
Owes a duty to the public and shall consider himself or herself a servant of the people. (Duty)
Shall regard it as an honour to serve in the nation’s highest legislative forum as an MP. He or she has a moral responsibility to preserve the reputation of his or her office. (Honour)
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. (Integrity)
Shall display allegiance to the State and shall show concern for the wellbeing of the persons that he or she was elected to represent. (Loyalty)
In carrying out public business, shall make decisions based on merit when making public appointments, awarding contracts, or recommending individuals for rewards and benefits. (Objectivity)
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. (Responsibility)
Shall be open about all his or her public decisions and actions and be prepared to provide explanations when so demanded by the public.
Included with the Code are eleven articles relating to: (i) soliciting/acceptance of bribes; (ii) discrimination; (iii) acceptance of gifts; (iv) conflict of interest; (v) use of official influence; (vi) handling of classified or proprietary information; (vii) use of public property; (viii) sexual misconduct; (ix) acceptance of entertainment; (x) use of office in an improper manner; and (xi) outside employment. For the purpose of the Code, 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.
What happens if there is a breach of the Code?
(Transparency)
As provided by Section 28, any person who believes that there has been a breach of the Code can file a complaint with the Integrity 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 Director of Public Prosecutions if it considers it necessary, copied to the President. By Section 27(2), 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.
The above procedures were, however, not followed. Instead, the issue involving the PAC Chairman has taken a political overtone, with the Government members aggressively pursuing his resignation while the Opposition is defending the Chairman.
Section 32 of the Integrity Commission Act 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. I recall when I was at the United Nations, I received a gift of two vases from a Chinese delegation. Although it was of a personal nature, I did not take it home but left it for use by the office. When I was Auditor General, a contractor who I was investigating at the time, sent me one of the most expensive bottles of whisky. I promptly returned it with a letter explaining why I had done so.