The Integrity Bill, 2017: Integrity and governance in The Bahamas, pt.3
The 1915 OAS MESICIC Committee of Expert Report, after reviewing the implementation by The Bahamas of the Inter-American Convention against Corruption, found that the Public Disclosure Commission of The Bahamas lacks the requisite independence to provide a robust mechanism to promote and enhance ethical conduct in public office, or to prevent, detect, investigate and prosecute acts of corruption in The Bahamas.
The Public Disclosure Commission is basically a unit of the Cabinet Office, headed administratively by the secretary of the Cabinet, where budget and human resources are subject to the approval of and under the ministerial portfolio of the prime minister.
The Committee of Experts recommended that the Public Disclosure Commission should be given greater independence, control over its budgetary, human and material resources and the ability to receive declarations and complaints online.
I commend the FNM government for tabling the Integrity Commission Bill, 2017, after consulting with various Bahamian stakeholders. The bill intends to repeal the Public Disclosure Act, 1976, the law that has provided the anti-corruption architecture for public administration in The Bahamas since 1976.
The Integrity Bill seeks to establish an Integrity Commission to promote ethical conduct for parliamentarians, public officials and other persons; provide measures for the prevention, detection and investigation of acts of corruption. The commission will, inter alia, receive and keep on record all declarations, statements of registrable interests and reports of gifts received by persons in public life; receive, inquire and investigate any complaint or report of an alleged act of corruption or breach of the code of conduct; educate the public against corruption; promote public education against corruption and monitor legislative and administrative practices implemented to combat corruption.
Composition and appointment of commission
The bill, at the second schedule, provides that the Integrity Commission will be constituted by persons of high integrity who are able to exercise competence, diligence and sound judgment in fulfilling their responsibilities under the act, as follows:
- A justice or retired justice of the Supreme Court or Court of Appeal of The Bahamas, appointed by the prime minister, after consultation with the leader of the opposition;
- A chartered or certified accountant of at least seven years standing appointed by the governor general, after consultation with the Bahamas Institute of Chartered Accountants;
- A person who is a counsel and attorney-at-law of 10 or more years standing, appointed by the governor general after consultation with the Bahamas Bar Association;
- A member of the clergy, appointed by the prime minister, after consultation by the Bahamas Christian Council;
- Two persons appointed by the prime minister on the recommendation of members of civil society;
- A person appointed by the prime minister, after consultation with the leader of the opposition; and,
- May include such other persons as the prime minister considers qualified to be appointed, having knowledge and experience in at least one of the following areas: public administration, economics or financial matters, or crime and fraud investigation.
This method of appointment compromises, I believe, the independence of the Integrity Commission, as the prime minister unilaterally appoints four out of the seven members of the commission. The leader of opposition is not entitled to appoint anyone and is merely consulted in the appointment of two members.
The House of Assembly and Senate play no role in the appointment of the commissioners. The prime minister also appoints the chairman, who presides at all meetings of the commission. In contrast, in the Turks and Caicos Islands, whose Integrity Commission Ordinance, 2014 served as a model for The Bahamas, the leader of the opposition makes an independent appointment of one of the commissioners and is consulted by the premier in the appointment of two of the six commissioners. Similarly, Sierra Leone, whose The Anti-Corruption Act, 2008 was strengthened after its civil war, has a law that is considered a model mechanism in the Commonwealth. The commissioner and deputy commissioner are appointed by the president, subject to the approval of Parliament.
As the laws in the Turks and Caicos Islands and Sierra Leone demonstrate, independence of the anti-corruption mechanism is sought through either giving the leader of the opposition the right to appoint at least one member, or having the executive branch propose appointees subject to the approval of the legislative branch.
Further, the Integrity Bill will empower the prime minister to remove a commissioner, after consulting with the leader of the opposition, for inability of mind or body, any other cause or misbehavior, after referral to a tribunal, whose three members shall be appointed by the prime minister, one of whom shall be a justice, to enquire into the matter and report back to the prime minister.
Where the tribunal recommends the removal, after having heard from the commissioner, the commissioner shall be removed. Therefore, the appointment and removal of commissioners, similar to the Public Disclosure Act, rests essentially in the hands of the prime minister. In Sierra Leone, the removal a commissioner, after receipt of a recommendation for removal from the tribunal, also requires a two-thirds majority in the Parliament. In the Bahamian Integrity Bill there are no checks on the unilateral choices of the prime minister by collaboration or power sharing with the legislature and the opposition.
Powers of a justice of the Supreme Court
Section 11 of the bill gives commissioners the powers of “a justice of the Supreme Court” for summoning and enforcing the attendance of witnesses and compelling the production of documents or things, except that summoning of any person to give or produce evidence to any Bankers’ Books Evidence Act, shall be issued by the chairman of the commission.
This section is identical to section 10 of the Bahamian Commission of Inquiry Act, which was enacted in 1911. In the case of the Commission of Inquiry v. Maynard et al Appeals No. 6 & 7 of 1984, Chief Justice Telford Georges observed since section 10 of the Commission of Inquiry Act clothed the chairman of the commission of inquiry with the authority of a justice of the Supreme Court to compel the disclosure of someone’s bank records, on when special cause is shown, there is a duty to act judicially.
In the case Pindling v. Bahamas (Commissioners of Inquiry) (1994) BHS J. No. 114, the Bahamian Court of Appeal found that the proper exercise of power under section 10 of the Commission of Inquiry Act did not breach articles 20, 21 and 27 of the Bahamian constitution. It should be noted that the Commission of Inquiry Act, 1911 was enacted some 62 years before the Bahamian constitution. However, section 11 of the Integrity Commission Bill may nevertheless be subject to a constitutional challenge on the principles of separation of powers.
The Privy Council in the case Hinds v. The Queen held that provisions of the Gun Court Act of Jamaica were unconstitutional because that act purported to grant to magistrates judicial powers which were usually exercised by justices of the Supreme Court, allowed in camera trials for safety reasons, and imposed mandatory sentences of detention at the pleasure of the governor general.
The Privy Council held that Parliament cannot give to magistrates powers traditionally exercised by judges of the Supreme Court, because magistrates lack the constitutional security of tenure and judicial independence of Supreme Court judges. Supreme Court judges, with the exception of the chief justice and the president of the Court of Appeal, are appointed by the governor general on the advice of the Judicial and Legal Services Commission, which consists of persons likely to be qualified to assess the fitness of a candidate for judicial office.
Judges of the Supreme Court, unlike magistrates, are protected by entrenched provisions of the constitution, with a greater degree of security of tenure, fixed emoluments and cannot be removed or disciplined, except on the recommendation of the Judicial Service Commission with the right of appeal to the Privy Council.
The Privy Council stated that “it would make a mockery of the constitution if Parliament could transfer the jurisdiction previously exercisable by holders of new judicial offices to which some different name was attached and to provide that persons holding the new judicial offices should not be appointed in the manner and upon the terms prescribed in chapter VII for the appointment of members of the judicature”.
Applying this analysis to the section 11 of the Integrity Bill, if the integrity commissioners lack the requisite independence and security of tenure, Parliament may not be able to clothe them with the powers of a justice of the Supreme Court. Therefore, section 11 of the bill may be vulnerable to constitutional challenge on the rationale of Hinds.
Acts of corruption
The bill defines “acts of corruption, as follows: soliciting or accepting, whether directly or indirectly, any article, money or other benefit or advantage for oneself or another person for doing an act or the omitting to do an act in the performance of one’s functions as a public official, improperly influencing the appointment of, or the dismissal, suspension or other disciplinary action against a public official; and during the performance of one’s official duties, pursuing a course of conduct with respect to another public officer which amounts to offensive sexual comments, gestures or physical contact other conduct of that kind; a public official, who in relation to a contract for performing any work, services and supplying articles or material, accepts any benefit for himself or for another person for awarding a tender to a particular person, or as a reward of awarding a tender to a particular person, gives confidential information to enable a person to tender or not tender in order to obtain an unfair advantage, or receives any benefit from a person who has submitted a tender or received any government contract”.
Penalties for acts of corruption include fines up to $10,000 or imprisonment up to two years or both, on summary conviction; fines up to $20,000 or imprisonment up to 20 years or both, on conviction on information; to be disqualified from holding any public office for a period of five years from the date of conviction for the office.
There are also possessory offenses, where a public official is found to be in possession of property or pecuniary resources which are disproportionate to his known sources of income. The burden is placed on such a public officer to produce satisfactory evidence to prove that the possession of the property was acquired by lawful means. The penalty is a fine, equivalent to one and one-half times the value of the property or pecuniary resource, and imprisonment between six months and three years.
The bill allows for anonymous complaints without liability, provided that the complaint was made in good faith. Acts of intimidation and retaliation against a complainant are an offense, subject to a fine of up to $10,000 or imprisonment up to two years or to both.
Public officials have a duty to report acts of corruption by other persons under penalty of a fine up to $5,000 or to imprisonment up to six months or to both, on summary conviction.
Every member of Parliament and senator shall file with the commission a statement of registrable interest. The commission is charged to keep a register of interests available for inspection by the public. Further, every person in public life will have to report to the commission receipt of any gift valued in excess of $1,000 and whether the gift is a personal or official gift, with the commissioner having the final say whether the gift is personal or official. The bill also affords protection for public officials who make a protected good faith disclosure, commonly known as whistleblower protection, to employers, legal advisors, the prime minister or the commission.
The first schedule contains a code of conduct, the breach of which can result, on conviction, in a fine up to $20,000 or imprisonment up to a year or both. Complaints could be made to the commission or the commission may, on its own initiative, investigate an alleged breach of the code.
Implications for campaign finance contributions to political parties
The definition of “acts of corruption” will have implications for campaign financing by political parties, because members of Parliament and senators, who simultaneously serve as officers in political parties, often “solicit, accept or receive campaign contributions and gifts either directly or indirectly from private corporations, including transnational (corporations) or individuals from another state” who may have matters before the Bahamian government or intend to apply to the government for a benefit.
Currently, the prime minister and leader of the opposition are serving as leaders respectively of the two major political parties. Therefore, current campaign financing practices may constitute a breach of this bill, even though political parties are not included as a “specified office” in section 2 or the third schedule of the Integrity Bill. It is clear that campaign financing and the regulation of political parties should be companion bills to the Integrity Bill, as was done in the Turks and Caicos Islands.
The bill will require every person in public life, offices specified in the third schedule, to file annually a declaration with the commission, or in the case of commissioners with the prime minister, making full disclosure of income, assets and liabilities for the declarant, spouse and children under 18.
Members of Parliament and senators must also file annually with the commission a statement of registrable interests, such as directorships, government contracts, trusts and political, trade or professional associations to which the person belongs. The first schedule contains a code of conduct, the breach can result, on conviction, to a fine up to $20,000 or imprisonment up to a year or both. Complaints could be made to the commission or the commission may, on its own initiative, investigate an alleged breach of the code.
Persons in public life will include persons holding public offices, inclusive of members of public boards. Strangely, however, members/officers of the judiciary, correctional services, political parties, publicly funded educational institutions and special advisors to the prime minister and local government officials are not listed under the third schedule.
Upon receipt of declarations, the commission or the prime minister may make inquiries to verify or determine the accuracy of declarations or hold formal inquiry to verify declarations. Failure to file or the filing of an unsatisfactory or false declaration will be published in the Gazette, reported to the public body and to the director of public prosecution.
The director of public prosecutions (DPP), upon receipt of the reports from the Integrity Commission of alleged breaches, can undertake criminal proceedings against the person for breach of the provisions of the Integrity Bill.
Since the Integrity Commission, unlike the Anti-Corruption Commission of Sierra Leone, will not have the power to prosecute, all prosecutions for breach of the Integrity Bill will have to be initiated by the DPP. However, the Constitution (Amendment) Act, 2017 amended article 78 of the constitution by creating an “independent” director of public prosecutions, but reserved a discretion in the attorney general as follows: “The attorney general may, in any case involving considerations of public policy national security or the international obligations of The Bahamas give general or specific directions to the director of public prosecutions by article 78A(3) and the director of public prosecution shall act in accordance with those general or specific directions.”
Given this reservation and the subjective definition of “public policy”, can the DPP’s independent prosecutorial discretion be compromised by a general or specific written direction from the attorney general under the guise of “public policy, national security or international obligations of The Bahamas” in a high profile anti-corruption case?
In part 4, I will make recommendations based on lessons learned under the Public Disclosure Act, the international anti-corruption conventions ratified by The Bahamas and best practices, to improve the Integrity Bill in order to provide a more robust anti-corruption mechanism for The Bahamas.
- Alfred Sears is a Queen’s Counsel and former member of Parliament and Cabinet.
JUMPLINE: All prosecutions for breach of the Integrity Bill will have to be initiated by the DPP