The Jeff Cumberbatch Column – On the Prevention of Corruption 2
The current official imperative to establish machinery to modernize the statute that criminalizes corruption in matters of state has seemingly not met with universal acclaim, if I am to judge from a number of responses to my offering in this space last Sunday.
While there are those who believe that corrupt behaviour among public officials merits the harshest punishment constitutionally possible, there are those who, while grudgingly accepting the “optics” of passing such a statute, nevertheless remain cynical as to its likely success in curbing such corruption, given the ingrained local culture of the weak or non-enforcement of many of our penal laws and the natural tendency towards corruption.
Last week, we concluded our discussion by noting that the text of the Bill in its present form, had failed to distinguish adequately between the Board of the Commission as identified in the First Schedule and the executive staff of the Commission itself, using the expression “Commission” to describe both. That there is such a distinction is fortified by the provision in Clause 8 (1) that
the Commission may, acting within the funds and resources available to it employ such officers and other employees as are required for the proper performance of the functions of the Commission; and retain the services of professional persons…..
Concomitantly, this provision may raise another moot point for the more cynical as to whether our anticipated level of future corruption merits the expenditure at this stage of the hefty fees likely to be billed by forensic auditors and of the wages of the financial and legal functionaries expected to be employed on the staff of the Commission. It remains at base a policy issue, I suppose, namely, what price are we prepared to pay to counter public corruption?
The designated functions of the Commission make it the repository and examiner for veracity of the relevant documentation pertaining to those declarations, statements and reports that the Bill mandates to be submitted by those persons in public life as defined. However, it has an even more critical core function at Clause 4 (1)(d)
to receive, inquire into and investigate any complaint or report of alleged contraventions of the Act or of the Code of Conduct; the acquisition by a member of the House of Assembly or the Senate of a prohibited interest; or an alleged offence under any Act that assigns responsibility for the investigation of offences to the Commission…
This police power of investigation granted to the Commission the Commission is untrammelled since in the exercise of its functions it “may not be subject to the direction or control of any person or authority”, -Clause 4 (2)- except, of course, despite the absolute nature of this provision, to the canons of natural justice and it will arguably be subordinate to the courts.
Further, since by Clause 4 (1)(d), the Commission is empowered “to investigate any matter referred to in paragraph (d) [ex propio motu] on its own initiative, where the Commission is satisfied that there are reasonable grounds for an investigation or inquiry”; this would preclude the need for the formal complaint that the local Force recently deemed necessary for it to initiate an investigation.
In addition, the Commission exercises a residuary regulatory function in relation to probity in public life, considering the effect of sub-sub-clauses (f) and (g) of Clause 4-
“to examine the practices and procedures of public bodies in order to facilitate the discovery of corrupt practices, except where there is a statutory duty on any other person to perform that function;” and
“to instruct, advise and assist the management of public bodies of any change in practices or procedures which may be necessary to reduce the occurrence of corrupt acts, except where there is a statutory duty on any other person to perform that function…”
Nor is the geographical reach of the Commission limited. Clause 6 entitles it to enter into compacts with local and foreign law enforcement agencies to assist it in carrying out its functions and the power to appoint and designate investigative officers granted by Clause 9 serves to convert it into what I would describe as an anti-corruption police force for officialdom.
The concentration of such awesome state power in the Commission should be jealously guarded and matters such as the mode of appointment of its members, their partisan political biases and their susceptibility to corrupt practices all assume prominence in this context. The mode of appointments, mainly by the Governor General after consultation with a specified authority is ostensibly reassuring, although as I noted last week, I am not immediately persuaded of the need for member of the clergy, the attorney at law or the two “partisan” advised appointments at (e) and (f) of paragraph 1of the First Schedule.
While I imagine that the nomination of a member of the clergy is a sop to religion as being the genesis of a morality that should be the antithesis of corrupt conduct, and that of the attorney at law an acknowledgement that the matter of criminalizing official corruption is essentially a matter of law, the two partisan appointments give the impression of a tawdry attempt to appear even-handed although, given the nature of the matter under discussion, it may be argued and is submitted that traditional politics ought not to play any role, either significant or at all.
It bears further remarking that the members of the Commission are afforded some security of tenure in that the removal of any of them for any of the specified causes requires the convening of a tribunal by the Governor General that shall consist of
(a) a judge of the Supreme Court;
(b) an attorney-at-law with at least 10 years’ standing whose name appears on the Roll of Attorneys-at-law pursuant to the Legal Profession Act, Cap. 370A; and
(c) one other person of high integrity and appropriate qualifications,
to inquire into the matter and report on the facts thereof to the Governor-General…”
and recommend to him whether the member ought to be removed.
The member is, understandably, given an opportunity to be heard in his or her own defence.
Next: Declarations of financial affairs