A Discussion Site for Good Governance and Corruption in Public Life Issues in the British Overseas Territory of Anguilla in the West Indies, moderated by Don Mitchell CBE QC, of PO Box 83, Anguilla, British West Indies. Email me with your comments and contributions at: idmitch@anguillanet.com.
There are some other obvious gaps and deficiencies in the new draft Constitution proposed for Montserrat. It is to be regretted that no thought has been given in this draft Constitution to providing for a Freedom of Information Act. Without such a law, no one in Montserrat would have the right to obtain information that should be available to the public. Secret government, which is an enabler of corruption and bad government, is in this way encouraged.
It is to be regretted that an opportunity was not taken to entrench the Tenders Board in the Constitution. The greater part of the budget is spent on developing infrastructure, repairs and maintenance. Procurement of goods and services offers attractive opportunities for those who would corrupt the process and illegally enrich themselves. The Tenders Board ought to have the independence and security of tenure of its members protected by the Constitution and by appropriate laws and regulations, backed up by appropriate training for members of the Board.
Amendment of the Constitution. Section 114 of the draft provides that only the Premier, in very limited circumstances, may request an amendment of the Constitution. The FCO reserves unlimited right itself to amend the Constitution without any reference to the people or government of Montserrat. This is clearly highly undesirable. The Cayman Islands recently completed their constitutional negotiations and accepted a new Constitution. In the case of the Cayman Islands, the FCO accepted that it would never again amend their Constitution without first putting it to a referendum of the people. No person can suggest that there is a good reason why some lower standard of democracy should be enjoyed by Montserratians.
A Constitution is the supreme law of any people, subject, in the case of a BritishOverseasTerritory, to the Parliament of the United Kingdom. A Constitution that is imposed on a people by a foreign power lacks validity and respect.
In my view, it is the duty of every patriotic Montserratian to insist in the strongest possible terms for a right to comment on and criticise any terms in this draft Constitution that appear unacceptable to them.
Montserratians have a right to demand that the draft Constitution be put to them for their approval either by a referendum or by some other mechanism calculated to demonstrate their real approval and acceptance of the new Constitution. Only after this has been done would it be proper for the Governor to pass the draft to the Privy Council for enactment by an Order in Council.
The British Government has frequently promised that it expects no less than evidence that the people of an OverseasTerritory have expressed their support for any amendment to a Constitution.
There is no reason why Montserrat should be given a second-class Constitution.
Tenders Boards and Procurement: We continue to examine the question of what tests there are for us to conclude that there is accountability and transparency in any particular government. The second institution that we would look for is a properly functioning Tenders Board and a well regulated procurement procedure. That means it must be governed by a law and supported by legal sanctions.
A significant portion of Anguilla's national budget is spent on developing infrastructure, repairs and maintenance. Procurement of goods and services, relating to contracts for roads and schools and offices and hospitals, offers the most attractive opportunities for those who wish to corrupt the process and illegally enrich themselves. Corruption damages not only governments, but also companies and individuals. It is in the interests of our countries and our people to do what is necessary to minimize the opportunities.
In Anguilla we have been very astute to do nothing that will discourage corruption in the procurement process. Our procurement systems in Anguilla are essentially lawless and unregulated. Our presently unregulated system is an invitation to sharp practices.
Transparency and accountability are the main antidotes for this type of corruption. We need to insist on recognised standards and procedures in relation to procurement and tendering. Tenders Boards ought to have the independence and security of tenure of their members protected by the Constitution. We need appropriate laws and regulations to set out how public contracts are to be awarded. The Integrity Pacts recommended by Transparency International will carry the process forward and upwards to an entirely new level.
System malfunction?Overseas Report has a very interesting article by Benito Wheatley on the British Virgin Islands political culture. Everything he says is applicable to Anguilla. I urge you to read it for yourself. His point is that the people of the BVI are discontented with the political system of that OverseasTerritory. He ascribes this discontent to the political culture of the Territory.
In the BVI, as in Anguilla, recent governments can claim to have improved the territory’s progress and development. Yet, some areas of society are worse off than previously. Something is undermining government’s effectiveness. He believes that the blame lies in certain political practices that have been adopted. It is not that the politicians are particularly corrupt, it is that the system they have inherited and have continued to cultivate seems almost designed to cause suspicion and disquiet.
The first corrupt practice he refers to is post-election patronage. The culture of Anguilla, as in the BVI, and no doubt of every British Overseas Territory in the West Indies, is that the first thing a new government does is to dissolve the various Boards, Commissions and Committees established by the previous administration, and appoint their own political supporters in their place, no matter how inappropriate and incompetent they are. They say it is expected of them, and they are only considering the expectations of their followers. There is nothing further from the truth. This is a system of British Foreign Office encouraged victimisation that has existed in our Leeward Islands since the earliest colonial times. Political victimisation is designed to muzzle a segment of the population and to inhibit free speech in order to give the administration free reign. It makes life easier for the Foreign Office as well as for the local administration. It is an evil system that the British themselves have now done away with. No politician in that country can appoint a single person to a Board or a Committee without that person being vetted by an independent body established for the purpose of ensuring that ability and merit outweighs political patronage.
He calls the second problem with our governments the “headstrong” approach to governance. We in Anguilla well know what he means. This is the system whereby Ministers are encouraged to believe that only they know best. There is no need for real consultation with the people on certain matters. They have been appointed “to rescue the people from themselves”. Ministers, by their election to the House and appointment by the Governor, believe they have been empowered to take decisions, even when they are contrary to the opinion and advice of technical experts. There is no need to give specific examples from Anguilla. Every one of the public works projects, awards of licences, and granting of permits over the last ten years have proceeded under this system. It is facilitated through the agency of compliant permanent secretaries. The inevitable result of this style is that public confidence in the integrity of government leaches away. The public becomes more and more disenchanted with the system of governance. Their only pathetically inadequate remedy is the quinquennial return to the polls. It is inadequate because the flaw lies in the system that each administration functions under, not with the individuals who happen to have been elected.
Tied to this problem of the headstrong approach to governance is the lack of transparency. Contracts are awarded under a veil of secrecy. Villagers wake up in the morning to find that a public road has been bulldozed through their midst in the night. The Chief Surveyor approves the alteration of boundary marks when the affected neighbours have not been notified of the proposed change. The public works tendering process is neither constitutionally mandated nor otherwise protected from political interference. On the contrary, public works contracts are viewed as a political opportunity to keep contractors happy and in the right camp. Worse, many contracts are awarded to political favourites without any consideration of the public interest in having the work done at a reasonable cost and to an adequate standard. The standard argument in support of this approach is that if government had to consult the public on every issue nothing would get done. Our governments fail to accept that a proper functioning democracy depends on a consistent and dependable consultative process. People who are affected by public works decisions must be given a chance to make their input, even if it slows the pace of government.
His final criticism is the corrupting influence of the constituency system. We in Anguilla all know about that. The politician with the means to buy off the majority of his voters is almost guaranteed to win his seat in the House. When most elections are won by majorities of less than one hundred, it helps if you have more relatives in your village or district than the other candidate. We expect our politicians to favour the constituency from which they were elected. We demand the right to approach the Minister and ask for his help with a personal problem, even if it means corrupting the system designed for the protection of the public. Planning permission objections are overruled, work permits are granted, and residence permits are awarded, depending on who is the individual applying. This is so routine that Ministers tout it as proof of their concern for the interests of the little man, a source of popularity. It is not recognised for the corruption that it is.
The blame for this must be put where it belongs. The political system, the Westminster Model, does not function efficiently in Anguilla. We need to put more checks and balances in place. Structural change is needed in the way we do government in Anguilla. A course of re-education for all our senior officials in the principles and practices of transparency and accountability is urgently needed. A legally enforceable and mandatory tendering process for all contracts above a certain level is essential. Transparency in the award of contracts would be a first step. The granting of permits and licences on the basis of merit only, is universally demanded. The vetting of political appointees requires no great change in the law, only a commitment to transparency and accountability. Island-wide elections must be provided for in the new Constitution. These reforms are needed by all the Territory governments of the West Indies.
The way public works contracts in Anguilla are awarded. The Anguilla Government is in the process of awarding contracts for the construction of a 500 metre “Runway End Safety Area” or “RESA” at WallblakeAirport. The cost of constructing this safety area is expected to be in the range of EC$10,000,000.00 and upwards.
I have learned that there will be no ‘bidding’ or ‘tendering’ for any of the contracts. Instead, the Ministry of Infrastructure has divided the project up into several separate contracts, and proposes to share them out “equitably and without regard to politics” according to who’s got the required equipment. Junior Fleming is on the list, but so is Greig Hughes. That is supposed to mean that the process is fair and equitable!
As I understand it, the Ministry of Infrastructure will carve up the RESA project into, say, for the purposes of this discussion, 5 equal separate contracts, allocating prices to each of them. As I understand the proposed “fair and equitable” award procedure, a Ministry of Infrastructure agent will go to Contractor A and say, “We have decided to award you Contract A for $2 million. That is your fair share of the RESA project. Do, you accept it?” Contractor A does his sums. Let us say he realises he will make a 50% profit. Of course he says “Yes”. The same happens with Contractors B, C, D and E. Everybody is happy!
Now, let us look at how the tenders procedure was supposed to work. Suppose that there are several Anguillian contractors, all equally competent and qualified. Suppose they are all interested in one or more of those 5 separate contracts. Say, Contractor A studies the tender documents for one of the contracts, and thinks he could do it for $2 million, and make his profit. Contractor B might have fewer overheads than Contractor A, and concludes that he could do it for $1.8 million. Unknown to them both, Contractor C is prepared to shave his profits down, and he puts in his bid at $1.5 million. All qualified Anguillian contractors put in their various bids. Their bids are opened by the Tenders Board. The Board awards the contract to the most competitive bidder, in this case Contractor C.
Public works contracts are not supposed to be awarded by government officials to chosen recipients at a price determined on a Heaven-alone-knows-what basis. Government contracts are supposed to be bid on competitively. The correct and proper process is called ‘tendering’ for government contracts. The mandate of the Tenders Board is to protect the public purse in the award of public works contracts. The independence and procedure of the Tenders Board is meant to be guaranteed by a statute. The Tenders Board is not expected to act like anybody’s pet poodle. They are not supposed to award contracts on the basis of whether they will get government the most favourable publicity and popularity. Their duty is to select the bid that will be in the best interests of the people.
Tendering is the only known and proven way for government to be transparent and accountable in the award of public works contracts. Tendering for public works contracts happens in every Commonwealth Caribbean country, except Anguilla.
In my view, the procedure that government intends to follow in awarding these major pre-election airport contracts is the opposite of fair, transparent and accountable. The award procedure may be politically safe and popular with the contractors. But, it is not fair to the consumer, that is, to you and me. It is a system of pre-selecting contractors that must by its nature and effect be the opposite of fair, transparent and accountable. If you want all 5 contractors to have a fair chance at each of the 5 contracts, let them bid on each one of them. Let the best bid win in each case. That is fair, transparent and accountable.
Let the contractors do what they are supposed to do. Let them compete for public works contracts. Award each contract to the one with the best offer. The present system reminds me of a dog-owner handing out treats to his pets. It is a contemptible failure of a system.
The procedure proposed for the award of the RESA contracts rewards the inefficient. It punishes the public by failing to ensure the best bang for the buck. No doubt, it has evolved partly out of ignorance of the proper procedure. It has also evolved partly to ensure that the party in power is popular among all the contractors who are invited to do public works contracts. They each control a lot of votes. In the case of the RESA project, no one notices that $10 million is going to be paid out for contracts that may really only be worth $7 million.
Consider this. Not all public works projects are this big. Not every project can be divided up into separate contracts and shared out to several contractors. There have been hundreds of smaller contracts over the years that have been awarded to pre-selected contractors. Tell me why this should not be described as an intrinsically corrupt system.
Consider this also, how many of our politicians have brothers, sons, and campaign managers who are either building contractors or heavy equipment contractors? How many Anguillian politicians have shares in construction companies? Do these politicians allow Public Works to treat their companies in the same way as all other Anguillian contractors in the award of public works contracts? They would have to be all angels for that to have happened!
And, yes, the procurement process, even when protected by statute, can be corrupted by crooked contractors, public servants and politicians. At least then we know who to prosecute. Under our present weak and inefficient system, no one commits a crime while doing the same thieving and wasting of public funds.
Meanwhile, may the public see a copy of the Medium-Term Air Transport Sector Plan 2004-2008 done in connection with EDF9?
