Corruption: a clear and present danger
IN APRIL 2014, the Jamaican Government identified ‘Corruption of elected and public officials ... organised crime, including money laundering” as one of the “high-probability, high-impact, Tier 1 clear and present dangers’ to national security. (Ministry Paper No. 63 A New Approach: National Security Policy for Jamaica).
In September 2015, the UNO concluded that for countries to attain “sustainable development”, governments had to “combat bribery and corruption in all its forms” (Target 16 SDGs). In 2015 as well, at the 16th International AntiCorruption Conference in Malaysia, 1,200 delegates, including myself, from 130 countries, concluded in the conference declaration that “today around the world ... corruption manifests itself at the highest levels of political power and business”.
In the last 10 years, persons “at the highest level of political power in business” had been investigated, prosecuted, convicted and sent to prison, often by agencies combining investigative and prosecutorial powers, in the United States, the United Kingdom, Italy, Brazil, among others. Against this background, I present two Jamaican case studies drawn from the last 10 years.
DAVID SMITH – OLINT CASE
January 2006 – FSC started its investigation of OLINT.
March 2006 – FSC investigation was completed.
FSC investigation concluded that Olint and Lewfam were operating in contravention of the Securities Act. Further, what they were offering, the way they were offering it, was consistent with the characteristic of a Ponzi scheme.
On March 22, 2006, the FSC issued cease-and-desist orders against Olint, Lewfam, Then premier of the Turks and Caicos Islands, Michael Missick (left), and Olint’s David Smith at the 2008 Air Jamaica Jazz & Blues Festival. Smith was convicted of money laundering and fraud and his business assets frozen. Misick is facing corruption allegations.
Smith, Neil Lewis and their agents, etc.
On the same day, FSC forwarded the investigation reports to the Office of the Director of Public Prosecutions (ODPP) (then headed by Kent Pantry) outlining its findings re contravention of securities law.
Olint and Lewfam challenged the FSC’s conclusion in court. First round in the Supreme Court. The Supreme Court found in favour of the FSC.
Olint and LewFam appealed to the Court of Appeal. Lewfam subsequently withdrew its appeal, but Olint continued. Arguments were heard and concluded between February and May 2008.
While the FSC was awaiting a decision from the Court of Appeal, the Turks and Caicos Islands, as well as the US, using information gathered from the FSC’s investigation and from
information sharing (legally permitted under the FSC Act), convicted Smith, who had pleaded guilty to 23 counts of fraud and money laundering. He was sentenced in both jurisdictions – in Turks & Caicos to six and a half years; in US Federal Court, to 30 years. Still nothing from the local courts or the director of public prosecutions (DPP).
Also, on multiple occasions, the FSC provided copies of the previous March 2006 submission to the DPP – on the basis that they could not locate the original submission
In December 2010, the Court of Appeal decision (from the oral arguments before that court in 2008) was handed down, in favour of the FSC.
Despite the Smith confessions and convictions, no attempt has been made to leverage those convictions to advance prosecutions in Jamaica. Joseph Hibbert went to his grave with a corruption case hovering over him.
JOSEPH HIBBERT CASE
Joseph Hibbert, MP, minister of state, October 2007-July 2009
November 26, 2008 Oral representations made to the Office of the Contractor General (OCG) by the representatives of the Jamaica Constabulary Force, the SFO of the United Kingdom, and the British High Commission. Inter alia, Mr Dickson, UKHC second secretary, informed the OCG that “both the British prime minister, Mr Gordon Brown, and the Jamaican PM, the Hon Bruce Golding, were informed about the particulars of the corruption case against Mabey & Johnson ... . Mr Golding had stated that the law must take its course ... . ”
December 9, 2008 Joseph Hibbert’s home was searched by UK law enforcement. This follows on the SFO request under the Mutual Legal Assistance Criminal Matters Act and pursuant to a Jamaican court order.
July-September 2009 Mabey & Johnson pleads guilty to bribing overseas officials, including Joseph Hibbert, between 1993 and 2001. Documents of the Southwark Crown Court alleged that Hibbert received more than £100,000, roughly doubling his salary during the relevant period. Mabey & Johnson, in pleading guilty, paid a fine of £6.6 million for bribing overseas public officials in Jamaica, Ghana and Iraq.
July 2009 Hibbert resigns as minister of state after meeting with Prime Minister Golding. The resignation letter stated: “In view of the allegations of bribery of Jamaican government officials made in the UK Courts by Mabey & Johnson ... . ”
January-October 2009 A special investigation initiated by the OCG in January 2009 concludes in October that Hibbert is guilty of accepting bribes and should be prosecuted. The matter is referred to the ODPP.
March 19, 2010 After study of the OCG’s Special Investigation Report, the DPP rules that not sufficient evidence is available for charges to be made against Hibbert. However, there is “sufficient compelling material” for police to further investigate allegations of corruption”.
November 2009-2011 Statements, numerous calls in the Jamaican media regarding the Hibbert case, e.g., Gleaner editorial dated February 25, 2011: ‘What of Mr Hibbert?’
Up to 2012 – Hibbert remained in Parliament.
June 15, 2013 – Hibbert dies without ever being prosecuted and thereby being afforded the opportunity to clear his name or otherwise.
In September 2014, the OAS Peer Review of Jamaica, in accordance with the InterAmerican Convention Against Corruption, observed in its final report “that the country ... should consider addressing the lack of prosecutions or actions undertaken by the Office of the DPP, whether it is an issue of priorities or resources”.