Uneasy lies the head: Anti-Bribery, Anti-Corruption and the proposed Integrity Commission Act.
Anti-Bribery and anti-corruption in Jamaica are not only important from the viewpoint of Jamaicans, but also how Jamaica is viewed internationally, for the purpose of foreign entities doing business here, or with Jamaicans. Nevertheless, in the local circumstance, politicians and other officials are often seen as wielding considerable power, which can direct the way citizens live and behave; and thus, what is expected of such persons is a high standard of ethical behaviour. Even a sense of impropriety can knock them from their proverbial thrones, casting them in an unfavourable light, and opening them up to scrutiny. This article outlines the local legal framework for managing corruption by government officials. Specifically, I will review the Corruption (Prevention) Act, and the proposed Integrity Commission Act, passed in the House of Representatives on January 31, 2017.
The Corruption (Prevention) Act
The Corruption (Prevention) Act (“the CPA”) is one legal basis for checking the behavior of those who hold public office, and deals with the investigation and punishment of corruption. The CPA requires that government officials file annual statutory returns which assist the Commission for the Prevention of Corruption to, in one sense, garner whether an official’s income is proportionate to his or her position. If a public servant cannot account for assets disproportionate to his or her income, when called upon by the Commission, and corruption is alleged, that public servant will be liable for illicit enrichment. Failure to file a statutory declaration, or filing an unsatisfactory declaration, can also cause an official to fall subject to an inquiry by his or her public body, and the Director of Public Prosecutions.
The CPA also details “acts of corruption”, which can be committed by a public servant, and encapsulates circumstances where the official corruptly seeks or accepts, either directly or indirectly, money or other valuable consideration or advantage for doing, or refraining from doing his or her job in a certain way, or at all. Noteworthy, is that it is also an offence for any person to offer a bribe to induce an official to act in a particular manner.
Under section 15 of the CPA, the penalties for acts of corruption include fines up to $10 million, imprisonment up to 10 years, or both, depending on the circumstances. An official may also be liable for a fine up to $200,000.00, or a term of imprisonment up to 2 years for failing to file a statutory declaration; and where an official deliberately fails to disclose property, there may also be forfeiture of that property.
The proposed Integrity Commission Act
In the 2016 Corruption Perception Index, published by Transparency International, Jamaica was ranked 83rd out of 176 countries, representing a drop from 69th place out of 167 countries in 2015. This prompted the passage of the Integrity Commission Bill (“The Bill”) in the House of Representatives earlier this year, which states as its purpose:
“An Act to promote and enhance standards of ethical conduct for parliamentarians [and] public officials…by consolidating laws relating to the prevention of corruption and the award, monitoring and investigation of government contracts…and to provide for the Establishment of...the Integrity Commission to promote and strengthen the measures for the prevention, detection, investigation and prosecution of acts of corruption…”
The Bill will establish a Commission of Parliament known as the Integrity Commission; the functions of which are to investigate alleged or suspected acts of corruption, prevent, identify and prosecute corruption, and monitor the award and discharge of government contracts. The Bill also sets forward the establishment of three main divisions of the Commission, being the Administrative, Investigation and Corruption Prosecution divisions; and each division will have a Director. The Director of Administration will manage the day-to-day affairs of the Commission, while the Director of Investigation will look into allegations of corruption. The Director of Corruption Prosecution, subject to the powers of the Director of Public Prosecutions, will be empowered to conduct prosecutions of offences, and provide legal advice to the Commission. The Bill also provides for lodging complaints or giving information on acts of corruption to the Director of Administration.
Similarly, as under the CPA, Parliamentarians and other public officials will be required to submit statutory declarations and failing to do so, will also have consequences, such as a fine up to $500,000.00, or a term of imprisonment up to 6 months. Where Parliamentarians or officials give false information in a declaration, the punishment will be a fine up to $2 million, or up to 2 years imprisonment.
The law has recognised that since the eyes of foreign investors are upon us, and politicians and other public officials indeed hold vast powers, it is necessary to ensure that there are appropriate checks and balances on their behavior. The CPA is one such check, and the proposed Integrity Commission Act should do the same. The “teeth” of this proposed legislation will be something to look forward to as recently, more and more in the headlines, there are stories of investigations into the award of government contracts, and allegations of corruption by government representatives. It can only be hoped that the proposed legislation will become an Act, and will fulfill its mandate, because as untouchable as politicians and other public officials may seem, not even a king is inviolable, and often uneasy lies the head that wears the crown.
Lisa Rhooms is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Lisa may be contacted via email@example.com or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.