THE INTEGRITY COMMISSION BILL 2017
BILL REVIEW AND SUMMARY PREPARED DECEMBER 15, 2017
PREPARED AS A COURTESY FOR CIVIL SOCIETY BY:
Diane Phillips, Diane Phillips & Associates: [email protected]
Christopher Curry, University of Bahamas: [email protected]
Matthew Aubry, The Organization for Responsible Governance: [email protected]
On October 18, 2017, the Integrity Commission Bill 2017 was tabled in the House of Assembly at which time Minister of Legal Affairs Elsworth Johnson requested public review and comment, though public comment was not sought prior to its tabling.
When Benchmarked against similar legislation from the UK, Australia, Jamaica, Trinidad & Tobago, Nigeria and Turks and Caicos, The Integrity Commission Bill 2017, as tabled, seems to be appropriate to address the myriad of complex corruption-related issues facing The Bahamas and should enjoy strong support regardless of political affiliation. However, the bill and code of conduct is over 100 pages long and should receive wide scrutiny and input from the public to ensure that the legislation and policies are consistent and practical to enact. This brief has been developed to assist Civil Society and members of the public in evaluating the bill and offering feedback for the consideration of Parliamentarians.
It is important to note that the pending legislation grew out of an Anti-Corruption Bill that was circulated to ORG and CBB in the late summer for review. The Integrity Commission Bill 2017 reflected the recommendations to produce a more comprehensive bill and broaden the scope to include a code of conduct and provision of the direct referral to an independent prosecutor.
Generally, there are three types of anti-corruption or code of conduct legislation:
- The first focuses on criminal or police activity, including the methods and procedures surrounding investigation into behavior that has already occurred or reported to have occurred. Such legislation includes prosecution processes for existing behavior. That type of integrity legislation is heavily weighted toward police action.
- The second focuses on processes and procedures that curtail opportunity for corruption and inappropriate behavior by public officials and has an emphasis on public education.
- The third is an amalgam, extending its reach from law enforcement to the establishment of systems that would be most effective in guarding against corrupt practices. Its broad scope is considered a positive improvement over narrower legislation. The current Bahamas bill is developed to be this third type of more comprehensive legislation.
This can be seen as a positive direction for this legislation. As efforts to stem corruption and its negative effects proliferate worldwide, public participation in governance and building trust between the public, elected officials and the public service is recognized as one of the cornerstones of success. We believe that civil society played an important role in advancing the Bill and note our appreciation to the Office of the Attorney General and the Public Prosecutor for making the opportunity for same available.
Key Points of Bill
The Integrity Commission Bill 2017 proposes to create an Integrity Commission with responsibility to promote and enhance ethical conduct for Parliamentarians, Senators, Public Officials and other persons and to provide measures for the prevention, detection, and investigation of acts of corruption throughout the public service
The proposed Integrity Commission would be granted extensive powers and latitude. Given the level and depth of corruption in The Bahamas, the Commission must be as independent and strong and possess the appropriate resources. To not do so would be like asking everyone to obey the law, but forgetting to appoint police. The investigative powers of the Commision must be free of partisan, racial, ethnic, religious or other bias. It ensures that disclosures and claims can be investigated and verified or refuted. However, in the proposed legislation there are still worrisome ties to both those offices. The Prime Minister has great power in the appointment of the Commissioners and the head of the Commision. The AG maintains the power to permit the Commision to secure assistance or develop formal relationships with international organizations. The rationale for the latter may be that the Attorney General holds all information and powers relative to international code of conduct matters.
Scope of the Commision
The Integrity Commission is expected to serve as the conscience of the country. Under the proposed legislation, the Commission is to create the systems that enable a code of conduct to function effectively and to prosecute violators. The Commission should touch both processes and people, as it is to become the repository of all claims of corruption and will manage disclosures of elected officials and public servants. It contains protection for “whistleblowers” and is the trap door for misconduct of public officials. Its broad powers include creating the consequences for breaches of the code of conduct.
With this new legislation, the existing Public Disclosure Commission will be disbanded, repealed and replaced by the Integrity Commission. The commission will be responsible for gathering, tracking, investigation of disclosures and presenting findings to the public. As presented, there will be no need to seek or await permission from the Prime Minister or the Attorney General to proceed with action or to reveal findings. A major difference between the existing public disclosure commission and the proposed legislation is the independence and the broad powers of the proposed Integrity Commission.
Investigation and Advisement
The Integrity Commission Bill 2017 includes the power to order anyone in public service to turn over material and information relevant to an investigation of corruption. The results of this investigation are to be presented publically. The Commission also has the power to evaluate government and legislative practices and make recommendations to avoid opportunity for corruption. Such practices shall include but are not limited to full financial transparency with regard to awarding of contracts, and addresses the sensitive issues of benefits, gifts and use of government properties. In other words, the Commission will be able to uncover what happened and how it was allowed to happen along and then take action- advancing prosecution of charges or systemic changes as needed.
The Commission is also responsible for educating the public about the dangers of corruption. If it is fully effective, it will have the power to alter lax attitudes toward corruption and establish a culture of intolerance toward malfeasance and misconduct in public life.
A Code of Conduct for Public Service leadership
The Integrity Commission Bill also includes an extensive code establishing the level of conduct we expect from good government. This provides a template for elected officials and public service leaders to aspire to as opposed to just punishing the transgressors after the act has been committed. This is about more than catching crooks; this is about changing the culture.
When Benchmarked against similar legislation from the UK, Australia, Jamaica, Trinidad & Tobago, Nigeria and Turks and Caicos, The Integrity Commissioner Bill 2017, as tabled seems to be appropriate to address the myriad of complex corruption-related issues facing The Bahamas and should enjoy strong support regardless of political affiliation. However, the bill and code of conduct is over 100 pages long and should receive wide scrutiny and input from the public to ensure that the legislation and policies are consistent and practical to enact. This brief has been developed to assist Civil Society and members of the public in evaluating the act and offering feedback for the consideration of Parliamentarians. Recommendations and comments that have been put forward by Civil Society and the public thus far can be summarized as follows ( a more specific list will follow and be forwarded to the Parliament).
- The strength and independence of the Commission are essential to ensure that the bill achieves its objectives, including creating an environment of trust based on non-partisan impartiality in investigation and enforcement. The single greatest concern is that, as presented, the bill leaves uncertainty as to its true nonpartisan, nonpolitical intention by relying on the approval and consent of both the Attorney General and the Prime Minister for various functions. Our recommendation is to remove the positions of Prime Minister and Attorney General from the Bill with the exception of enjoying review privileges.
- The second set of concerns is with the appointment of the Integrity Commission and specifically the appointment of the Chairman. Again, the positioning of the Prime Minister as having power to approve the Chairman taints the intent with partisanship potential. Although there is often little separation between the Prime Minister and the Governor General, it is recommended that the powers of approval for the naming of the Chairman rest with the Governor General. There is much support for the inclusion of two members of Civil Society to the commission, but similar concerns regarding the role, and potential influence, of the PM in this process
- The third recommendation is creation of independent funding. Given the scope of work and responsibilities, sufficient funding and resources are essential and should be independent of any other office. It is also recommended that this independent funding should include the appointment of a highly qualified and independent education officer well-equipped to educate against corruption and drive a public awareness campaign.
The fourth recommendation is to clarify the levels of breach of code of conduct. It is clear that certain offenses including coercion, extortion, kickbacks in awarding of contracts, are criminal in nature and grounds for investigation and prosecution. Lesser offenses that fall under breaches of the code of conduct are harder to monitor and the systems for establishing and punishing breaches should be data-driven. Such offenses may include operating a government car for non-government business or using a public computer to send private emails. If it is a violation of the code of conduct, is it a sufficient offense to warrant the teeth it would take to enforce it? How will lesser offenses be captured and would such offenses be treated with first and second warnings then suspension or would they be covered by fines and public disclosure?
Minor offenses and abuses such as fuel allowance, cell phone usage, publicly-funded drivers, and other similar matters must be ironed out to allow an official to conduct his or her duties while limiting opportunity for abuse. However, they must also send a clear message that privilege is not unlimited as a result of holding office and that no public office at any level may be used as a means to gain business or influence decisions.
- Fifth, in devising data-driven material, consider the consequences of salary. Does a higher salary for public officials, including elected officials, make a difference in levels of corruption? Is there less corruption in a performance-based public service? Data collection and data-driven systems should be an integral core of the legislation and the processes it sets forth. For example, making it clear that the individual who commits a breach, not the government he or she is serving, will be financially responsible for any fine or penalty arising from conviction.
- For maximum effectiveness, the Integrity Commission 2017 must not be considered in a vacuum, but should be considered in tandem with those legislative measures that provide for the optimum efficiency, honesty and transparency of any government that maintains trust, integrity and trusted political stability, including Freedom of Information, Ombudsman, Public Finance Management and Performance Monitoring, Public Service Reform, Proceeds of Crime and independence of the prosecution and of judiciary.