The Jeff Cumberbatch Column – Ministerial Misfeasance
For those not so few souls among the populace who believe that all politicians are essentially corrupt, the Barbados Advocate photograph some weeks ago of Mr. Shane Gibson, a former Minister of Labour and National Insurance in the in the outgone Perry Christie administration in The Bahamas, being led into court to answer charges of bribery and extortion, must have provided ample corroboration of their long-held suspicions.
The general allegation is that Mr Gibson had solicited some $250 000 in bribes while in office and the specific criminal charges are one (1) count of misconduct in public office, sixteen (16) counts of bribery, two (2) counts of conspiring to commit bribery, two (2) counts of conspiracy to commit extortion and fifteen counts of extortion, interestingly enough all committed with or against a single named individual.
Unsurprisingly, the entire matter is being viewed as partisan, especially since Mr Gibson was a member of the losing party in the last general elections held earlier this year and the charges are being brought during the regime of the other party that is now in office. Logically, this should rebut any suggestion that politicians look out for each other even in the face of criminality, but allegations of a witch-hunt, the obverse of this thesis, are now being made with some force by supporters of Gibson’s party, especially since at least two other party colleagues of his, the former Minister of Environment and Housing and a former Government Senator have been charged with similar offences.
The Opposition itself has admitted that these charges are hurting the party though perhaps doing “more damage” to the country, and has announced its intention to file suit against the government over the investigations and to mobilize its supporters to “come together shortly to demonstrate our contempt for these inhumane actions”. That the issue has now assumed political proportions, at least from the Opposition’s point of view, may be further demonstrated by the presence of a crowd of supporters at Mr Gibson’s arraignment who chanted “PLP (the opposition party) all the way”.
Of course these matters still remain to be tried in court and remain mere allegations at this stage. The laying of the charges however raises the issue of the popular expectations for an administration that had campaigned successfully on a platform of anti-corruption and no tolerance for detected past misconduct.
The interposition of the people’s expectations presents a quandary for the winning party. Do nothing in the sense of not initiating any prosecutions whatsoever and either the electorate may feel a sense of fraudulent misrepresentation on your part or suspect that “all politicians are friends” and will never move against each other; launch criminal prosecutions and partisan sentiment is likely to preponderate and you thereby face the prospect of identical treatment of your members when next you assume the role of Opposition.
There is little doubt that corruption is harmful to the economic development of a jurisdiction. A 2011 publication from the anti-corruption organization, Corruption and Fraud Audit Consortium Limited Ghana [CAFAC] identifies a number of ways in which corruption may hamper economic development. These include high consumer prices as a result of an increased cost of doing business; reduced investment leading to reduced goods and services and inflation; reduced commitments from donor agencies; reduced foreign direct investment; reduced tax revenues; deficit financing because of revenue shortfalls; inferior and poorly maintained public infrastructure; uncertainty in economic transactions; an overall reduction in the growth of investment and the economy; and a concomitant reduction in the standard of living because of the inability of government to respond to legitimate economic concerns with social and economic programs.
This linear nature of the relationship between corruption and economic growth has been challenged by some thinkers who are of the view that this relationship is rather regime-specific and affirm that “in countries with relatively strong democratic institutions, corruption does damage economic growth but also that economic growth itself is a strong guarantor of reducing corruption because it means that the resource base from which rents are extracted expands over time…” [Aidt et al, 2008]
That corruption may be viewed as a wrong against the state itself is borne out to some extent by the 2010 decision of the Caribbean Court of Justice [CCJ] in Florencio Marin and Jose Coye v The Attorney General of Belize. There, the two appellants were former Ministers of Government who, it was alleged, had arranged the transfer of 56 parcels of State land to a company beneficially owned or controlled by one of them at a consideration almost $1 million below market value without lawful authority.
The Attorney General initiated a civil action on behalf of the state for the common law tort of misfeasance, the existence of which was doubted by the learned Chief Justice who accordingly dismissed the action at first instance. However, the Court of Appeal reversed this ruling, holding that the Ministers could indeed be held liable in misfeasance for the loss of public property and that the AG, as the guardian of public rights, was the person entitled to institute proceedings.
On their appeal to the CCJ, the appellants’ main contention was that the tort of misfeasance actionable at the instance of the central government did not exist at common law.
In a judgment that should repay reading, a majority of the Court disagreed with this submission. Even so, the two dissentient judges were careful to note that there were other civil causes of action available to the State here such as an equitable action for breach of fiduciary duty that, if established, “would regard all personal profits and advantages gained by any abuse of their status as public servants to be for the benefit of the state” and hence recoverable from the two.
It seems clear therefore that even in the absence of integrity legislation, the common law is well equipped to combat incidents of corruption by government Ministers and others. This may be effected either through prosecution of the criminal offences of bribery and extortion or through the common law tort of misfeasance as endorsed by the CCJ, or the suggested equitable wrong of breach of fiduciary duty.