Shaky foundations

Jamaica’s two leading politicians – Prime Minister Andrew Holness and Leader of the Opposition Mark Golding – are both linked to non-profit organisations that are not in good standing with the respective state entities tasked with regulating them.

According to the Companies Office of Jamaica (COJ), Holness’ Positive Jamaica Foundation Limited “is delinquent”, as its annual returns for 2020 were filed, but rejected by the agency, while those for 2021 remained outstanding up to The Sunday Gleaner’s last checks on May 19, 2022.

An outstanding documents report prepared by the COJ, a copy of which was seen by The Sunday Gleaner, also stated that the Positive Jamaica Foundation’s financial statements showing income and expenditure for 2018 were filed but rejected. The report added that financial statements for 2019 and 2020 were not filed, while noting filing and late fees of $18,000. The COJ is empowered by law to take delinquent entities to court and have them removed from the register.

“Your application cannot be accepted in its current format,” said the COJ in a July 2020 letter to the foundation, in which it highlighted that the company did not have a share capital between 2018 and 2019, as well as other issues that need to be rectified in the filing.

Holness, another politician Donovan Williams, and Mark Azan are on record as the directors of Positive Jamaica Foundation Limited.

Questions sent to Naomi Francis, the prime minister’s press secretary, more than a month ago on Holness’ involvement with non-profit organisations remain unanswered. On April 28, 2022, on the advice of Francis, The Sunday Gleaner emailed questions to her and Robert Morgan, minister without portfolio in the Office of the Prime Minister with responsibility for information. But despite follow-ups and reminders, the questions are yet to be answered.

When contacted, Williams, the member of parliament for Kingston Central, initially said he was not aware of the charity’s delinquent status, but later seemingly backtracked.

“No, I am not telling you that,” he said.

Attempting to probe him further, the call ended unexpectedly and several calls placed to Williams’ mobile phone thereafter were not answered.

‘DANGEROUS NOT TO FILE’

However, a source close to the COJ told The Sunday Gleaner that it is important for all charitable entities to submit their financial statements.

“It is dangerous to not file, especially because it is a charity. You would want to know where their income comes from and what they do with it,” said the source, who spoke on condition of anonymity.

Media reports and posts to social media have revealed that the Holness-chaired Positive Jamaica Foundation has contributed millions of dollars to various causes, the latest being a $2.5-million donation to clear final semester unpaid fees for 94 students at The University of the West Indies (UWI), Mona.

UWI, Mona Principal Professor Dale Webber said that for the past two years, the prime minister, through his foundation, has donated $2.5 million to the tertiary institution, asking that the funds benefit as many students as possible.

CHARITABLE STATUS REJECTED

In the meantime, Golding is a director of two foundations and a trust. Among them is the Mona Rehabilitation Foundation, a non-profit organisation, established in Jamaica by his late father, Sir John Golding, in the 1990s. He is a trustee of the Sir John Golding Fund, established in the UK in the 1980s, and a director of Greater Trench Town Foundation, a non-profit established in Jamaica about four years ago but has not commenced operations.

Under the Charities Act 2013, political parties and their candidates are prohibited from having an official role in registered charity organisations. However, Section 16 of the Companies Act allows for the registration of a company that can conduct charitable works.

“Where it is proved to the satisfaction of the minister that an association about to be formed as a limited company is to be formed for promoting commerce, art, science, religion charity or any other useful object, and intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the minister may by licence direct that the association may be registered as a company with limited liability, without the addition of the word ‘limited’ to its name, and the association may be registered accordingly and shall, on registration, enjoy all the privileges and (subject to the provisions of this section) be subject to all the obligations of limited companies,” states Section 16 of the Companies Act.

Those non-profit entities are overseen by the COJ, while registered charities in Jamaica are overseen by the Department of Co-operatives and Friendly Societies (DCFS).

In response to questions raised about his directorship in the Mona Rehabilitation Foundation, Golding told The Sunday Gleaner in a written response that “to the best of my knowledge, there is no law in Jamaica that prevents politically exposed persons from being directly involved in non-profit organisations.”

However, the DCFS, an agency of the Ministry of Industry, Investment and Commerce, noted that “the current legislative framework bars politicians from having a director role in charitable organisations”.

Asked squarely whether Golding was at any material time in breach of the law by being a director of a registered charitable organisation while being a political candidate, the DCFS said: “The charitable status of the foundation has expired since March 2016; and a request for renewal of status in 2018 was rejected for (among other things) failure to meet its statutory/filing obligations since 2015.”

Golding has served as a senator since 2007 before he was first elected member of parliament for St Andrew Southern in 2017.

In November 2020, he was elected president of the People’s National Party (PNP) and became leader of the Opposition.

“The Mona Rehabilitation Foundation has not been renewed since the implementation of the fit and proper questionnaire. Further to an earlier communiqué, the foundation applied for renewal status in 2018 but the application was denied. The ‘among other things’ referenced include: Failure to submit requested fit and proper questionnaires for all directors, along with certified identification for each director. Additionally, the renewal application was submitted outside of the established timeline and, therefore, would require a reapplication,” the DCFS explained.

Odane Brooks, Policy and Research Officer at the DCFS, also made it clear that the Mona Rehabilitation Foundation could not have its charitable status restored with Golding listed as director, given the political offices he occupies presently.

“No, he would not be able to remain as a member of the board,” Brooks said.

According to Brooks, resource constraints have prevented the department from dealing with delinquent charities. “Given our capacity challenges, we are in the process of doing a clean sweep to identify non-compliant entities and issue them with revocation notices,” he said.

The department also advised that the prime minister’s Positive Jamaica Foundation is not a registered charity with DCFS.

‘UNDERMINES THE RESPECT FOR RULE OF LAW’

The DCFS said it was not in a position to categorically state whether any other members of parliament or any senators were presently connected to registered charities in Jamaica.

“We have not received or seen any evidence to trigger concerns about PEP (politically exposed persons) involvement in any charitable organisations. However, in keeping with risk considerations, the department notes that entities connected with politically exposed persons can become vulnerable to money laundering and terrorist financing risk exposures. We have not seen any evidence to indicate that any entity under our supervision is exposed to vulnerabilities and is exposed to being abused by virtue of political exposure,” the DCFS said.

While not able to definitely say how many unregistered foundations and charitable organisations are operating locally, the DCFS approximated that at least 1,000 such entities exist.

When contacted, Fenton Hylton, general manager of the Mona Rehab Foundation, told The Sunday Gleaner on Friday that he was not aware that the entity’s charitable status had expired.

He said he was also unaware of the law barring political candidates from being directors in a registered charitable organisation.

“Yes, it is still operational,” said Hylton, who added that the foundation occasionally receives donations.

Jeanette Calder, executive director of the Jamaica Accountability Meter Portal, said it was a cause for concern that both foundations connected to the country’s two leading politicians are not in good standing.

“If both of these entities are out of compliance with Jamaica’s rules and regulations, it compromises how effectively the prime minister and leader of the Opposition can provide oversight of state entities guilty of same. It also calls into question if any sanctions that are to be applied have been and if not, this further undermines the respect for rule of law,” said Calder, who argued that the guardrails in the law are designed to safeguard good governance.

“There is a standard in other jurisdictions that Jamaica would do well to emulate, where politicians place a ‘firewall’ between themselves and any organisation they previously associated with, during the term of their service, be it business or charity.”

She continued: “It is not enough to merely disclose such, because such organisations falling into disrepute or failing to comply with the laws of the land, by extension, bring those leaders into highly questionable situations, be it ethical, moral or legal. None should feel that they are being denied the opportunity to do good, but the work of parliamentarians provides a more-than-generous menu of opportunities to do just that, and asking them to place their focus there for the nation’s sake will not short-change us nor them; rather, it puts up vital guardrails that augur well for better governance.”

tyrone.reid@gleanerjm.com