19 December, 2009
On 9 December 2009, International Anti-Corruption Day was celebrated all around the world. I apologise for forgetting to make a big deal of it on this blog. It is not that I was not aware of the significance of the date. It is just that on that day I was doing a job of work for the Governor General of St Kitts. So, let us look back now, before the month slips by completely, and consider once again where we are in combating corruption in public life in
Our first line of defence is the Criminal Code. We do not have common law offences in
Anguilla any longer. All crimes have been codified. If a crime used to exist at common law, as bribery did, if it has not been retained in the Code, it has effectively been abolished. Either an offence is found in the Code or some other statute or it does not exist. The word ‘bribe’ is not mentioned anywhere in the Act, or in any other Act for that matter. Section 98 of the Criminal Code creates a new statutory offence of ‘official corruption’. I won’t recite the whole boring, long section. Suffice it to say that the most important of the Anguillian bribery offences is to be found at paragraph (a). This reads
98. A person commits an offence and is liable on conviction to imprisonment for 3 years, if he—
(a) being employed in the public service and being charged with the performance of any duty by virtue of such employment, corruptly solicits, receives or obtains, or agrees or attempts to receive or retain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done by him in the discharge of the duties of his office, or to be afterwards done or omitted to be done; or . . .
What we take away from this reading is that bribery is an offence only when committed by a civil servant. The phrase ‘employed in the public service’ refers only to civil servants. Ministers of government and board members and employees of statutory corporations such as the Health Authority of Anguilla, the electricity company ANGLEC, or the Social Security Board are not considered in law to be public servants. The consequence is that bribery is not an offence in
Anguilla when committed by a politician or a member of a statutory board. So, for example, a member of the Board of ANGLEC could, I am not suggesting by any means that any of them does, set up bribery book and with impunity offer to fast-track electricity connections to the highest bidders. He will be perfectly safe in the criminal law to offer to do public work in exchange for a private bribe. He will not be committing any criminal offence whatsoever. Neither would, for example, an employee of the Board. This defect in our law is a shame and an outrage. We need a proper, comprehensive offence of bribery in the law of Anguilla that applies to all persons appointed to serve the public in whatever capacity. [I was wrong. See the first comment.]
Our second and last line of defence is the Public Service Integrity Board Act. This law enables the Governor, whenever he thinks it fit, to submit a case to the Public Service Integrity Board where he suspects that there might be a conflict of interest. The Board only deals with conflicts of interest, not with integrity in public office as such is understood by all of us. A conflict of interest, you might think, is a very tiny, insignificant, almost irrelevant aspect of the whole area of integrity. The term conflict of interest is defined in the Act.
“conflict of interest” means a direct or indirect interest of a public officer in a commercial undertaking or direct or indirect involvement of a public officer in private work if such interest or work clashes or is incompatible with his official duties, and without prejudice to the generality of the foregoing, any interest or work which—
(a) impairs or is likely to impair an officer’s efficiency;
(b) brings or is likely to bring the Government, the public service or the officer into disrepute;
(c) impinges or is likely to impinge on his official work or responsibilities;
(d) makes or is likely to make him unavailable for responsible official duties outside normal working hours; or
(e) puts him, or gives the appearance of putting him, or is likely to put him, or give the appearance of putting him, in a position where he is able to use his official position for private gain.
The first thing we observe with this Act is that it is limited to civil servants’ conflicts of interest. No offence is committed when our Chief Minister serves, as he has for nearly two decades, as a member of our cabinet and executive council and at the same time as a Board Member and Chairman of a commercial bank in
Anguilla. How do you think an Englishman or a citizen would react if he were to learn that PM Brown or President Obama was the chairman of the Board of Barclays Bank or Citibank at the same time as he served as the head of the executive branch of government? And, why should we in US Anguilla demand any lower standards of our heads of government? In my humble opinion, it is nothing short of an outrage against public morality that this scandalous void in our law has been allowed to continue. The law ought to be changed to permit investigations into allegations of conflicts of interest by all persons serving the public in any capacity.
The second thing we notice about this Act is that the Board only functions where the Governor refers a matter to it. The Board has no power to deal with complaints made to it directly by private citizens. The Board cannot take up an investigation into any matter of conflicts of interest or corruption in the public service that comes to its attention. Any attempt to do so will be met by the standard, “We are dealing in-house with that matter. Do not fret yourselves with it.” There ought to be a law which authorises an independent body to investigate and report on any allegation of conflict of interest by any person serving the public interest.
This toothless bulldog of a law has contributed in no small way, in my opinion, to the lowering of standards in public life in
Anguilla. It serves only as a demonstration to the children of this country that you can do whatever you want to further your own personal interests while claiming to serve public ones. I once served on this Board for four years. At first I was filled with enthusiasm. I very shortly became disillusioned by the ineffectiveness and pointlessness of it all. I wonder sometimes how my successor thinks about his role.
Columnist Martin George had a point a few months ago when he demanded that the Integrity Act of
be scrapped. It would be a first and necessary step in our islands in really dealing with corruption. In his column in the Trinidad Guardian Newspaper on 7 June 2009 he argued that the real point of the law should be to prevent corruption in public life, not to enforce integrity. We have no business fudging and confusing corruption with integrity. These laws of ours, whether in Trinidad and Tobago Trinidad and Tobago or in Anguilla, have proven very ineffective in reducing corruption in public life. That should be the real objective of this type of legislation.
I agree with Martin George. What we all need is an effective Prevention of Corruption in Public Life Act. Neither of us has that yet.