Focus | Are Smith and Gibson cases watershed moments for the justice system?

Dr. Hubert Minnis and the Free National Movement (FNM) made fighting corruption a central plank of their campaign platform in the 2017 general elections. Commenting on a U.S. state department report on corruption, the then Opposition Leader Dr. Hubert Minnis stated unequivocally, “We need proper anti-corruption legislation with an independent agency properly funded with proper staff, with the legislative authority to do their job. The agency would report to an independent director of prosecution who will have no oversight by the attorney general, and possibly political interference. We need a new direction, and what we’re seeing today we won’t see anymore. Corruption is endemic in our society and it must change.” On any number of occasions, he alluded to corruption in the former governing party and his party’s intention to fight it when he came to office.

Fast forward to July 2017, shortly after Minnis’ party assumed office. Frank Smith, former Progressive Liberal Party (PLP) senator and chairman of the Public Hospitals Authority (PHA), is arrested, questioned by police and eventually charged with allegations of extortion and fraud by false pretenses. In the same month, Kenred Dorsett, former minister of the environment, is arrested under bribery charges. About a month later, Shane Gibson, former minister of immigration, is hauled before the courts with charges like those of Frank Smith. The political atmosphere is buzzing with the news of the arrests and the charging of these high-ranking individuals from the former administration. The Minnis administration was, or at least seemed to be, fulfilling its promise to fight corruption.

Some two years later, two of the three cases have been tried before the Bahamian courts. In both cases, against Smith and Gibson, the verdict was returned “not guilty” and in convincing fashion. Not only did the two politicians convincingly win their cases, in the course of the hearings, questions were raised about the practices of FNM government ministers, police investigators and witnesses. In other words, the corruption cases against the past administration now raised questions about corruption in the present administration. This is a serious claim.

Corruption is bad for a society. It undermines the institutions necessary for the stability and success of a country. It impairs economic growth and development. It endangers democracy. According to the United Nations, “Corruption is a serious impediment to the rule of law and sustainable development. It negatively impacts in that it obstructs economic growth and development, erodes public confidence, legitimacy and transparency and hinders the making of fair and effective laws, as well as their administration, enforcement and adjudication.”

It is appropriate for any administration to fight corruption. However, when fighting corruption, whether real or imagined, corruption cannot be a tool used. This would not only undermine the credibility of the administration itself but also undermine the justice system and good governance. Inevitably in such circumstances, the people of the country may start to lose confidence in the only institutions that can protect them from abuse of power by the state. This kind of a situation can lead to cynicism at best and anarchy at worst.

The PLP feels especially slighted by these charges of corruption. That they would celebrate the victories of their colleagues and highlight the perceived wrongs in the cases was to be expected. Still, the government may do well not to leave any claims of their own corruption in the cases unanswered. They must do this not only as a matter of political pragmatism, but more importantly, as a matter of national interest. Both Bahamians and external observers will watch to see whether the asserted claims are reasonably addressed. People will want to be assured that the government of The Bahamas did not pursue these cases as a matter of sheer politics or failed to make certain that there was no malfeasance within its own ranks.

If people believe that the cases were corruptly handled, it would hurt future efforts to prosecute any cases of corruption. A distrustful public might balk at being cooperative with authorities. Witnesses may hesitate to come forward. The jury pool of the country might be contaminated with suspicion of the actions of the government and its agencies. Even worse, we might enter a phase of perpetual political prosecutions, as one administration after the next goes after their opponents. We could become a banana republic in its truest sense. Who believes that the PLP, if, some may say when, it returns to office, won’t seek retribution for what they perceived were persecutions rather than prosecutions?

The stakes were high to set about prosecuting members of the former administration; they are higher still to have lost; and they are that much higher to lose under a cloud of suspicion. These cases could be a watershed moment for our legal system; especially if the government does not ensure that accusations of malpractice are properly addressed.

I have learned in politics that when charges go unanswered, they tend to stick no matter how false they may be. In this case, there appear to be some legitimate concerns for which, at the very least, credible explanations must be provided. These include the political involvement in the cases; police conduct in questioning of witnesses; the charging of suspects in the cases themselves; preparation and handling of the cases; the motivation for bringing the cases; and so on. All or some of these may have no validity at all but to the extent that they are in the public sphere as issues, there is a need for the government to address them speedily for the ease and comfort of our society.

Whatever one believes about the cases of Smith and Gibson, they both seem to prove that our system, as flawed as it is, can produce good outcomes. If you believe that there were corrupt practices by the state in these cases, you would want a “not guilty” outcome. If, on the other hand, you think that the cases had no such practices, well, it went to jurors who ruled in accordance with the considered evidence. In the end, the system seems to have worked. There is a legitimate argument that perhaps the powers did not prevail because the Smith and Gibson could afford expensive, high-quality defense teams; maybe, but that is a story for another day indeed.

• Zhivargo Laing is a Bahamian economic consultant and former Cabinet minister who represented the Marco City constituency in the House of Assembly.

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