Jamaica at risk of losing war against corruption

Blames DPP failings for cold cases

Low penalties make mockery of laws

Below is an excerpted presentation delivered by Contractor General Greg Christie as part of the Caribbean International Network Lecture Series in New York on October 26.

If it is accepted that the Contractor General Act has fallen short of its mark, why has the State not taken the requisite steps to remedy the act's deficiencies so that its purported objectives, of ensuring integrity, transparency and accountability in government contract awards, can be fulfilled?

Such a question will necessarily invite a discussion on the subject of the lack of political will. This is something that I have already suggested is lying at the root of several problems.

Political will is about the demonstrated desire, sincerity and actions of the government of the day not only to fight, but also to win, the battle against corruption.

Political will requires that the State, led by the incumbent adminis-tration, must take all requisite steps to put in place a comprehensive and independent anti-corruption institutional framework which is backed by:

(a) adequate resources;

(b) effective laws;

(c) tough criminal custodial and pecuniary sanctions for breaches of those laws; and

(d) anti-corruption institutional leaders who are prepared to dispassionately discharge their respective mandates and to forthrightly enforce those laws.

Political will is, therefore, about walking the talk, not talking the talk. It is about action, not words.

In particular, it demands that a prime minister must hold his Cabinet ministers and senior public officials fully accountable for their deviant conduct, or breach of trust, irrespective of the sacrifices that must be made, or the penalties that must be paid.

It is also important to recognise that the lack of political will can manifest itself in the deliberate creation of state anti-corruption structures, mechanisms and institutions, which are intended by the political directorate to appease the desire of its domestic and international stakeholders, but which are, in effect, mere facades.

Such structures are easily identifiable. While on paper they may look good, upon closer examination they will be found, either to be ineffective, weak, structurally deficient, lacking in teeth, lacking in critical resources, and/or led by political implants that are there to do the bidding of the political directorate.

Once this happens, the effectiveness of the State's anti-corruption institutional framework will be undermined,and the institution or the mechanism in question will be rendered literally useless.

major failing

A major failing of the Contractor General Act is that a contractor general has no power to prosecute corruption or other criminal offences which are associated with breaches of the Government's procurement, contracting and licensing laws, whether in his own right, or via a broad fiat which is issued by the director of public prosecutions (DPP).

Instead, a contractor general is required by law to refer matters to the appropriate state authorities, whether it be the Jamaica Constabulary Force (JCF), the DPP or the attorney general, for the appropriate action to be taken against offending public officials.

Coupled with the fact that a contractor general's remedial recommendations can be lawfully ignored by the Government, the inability of a contractor general to initiate his own prosecutions raises even more worrying questions as to whether the Parliament, in promulgating the Contractor General Act, had intended for it to be truly effective.

But what is the OCG griping about, you might ask, since there exists these other arms of the State to investigate and to prosecute allegations of criminal offences, inclusive of corruption related offences?

The simple answer is that looks are deceiving, for despite the presence of a JCF and a DPP, the fact is that there is now persuasive evidence that the relative paucity of criminal investigations and prosecutions for offences involving corruption, as well as for other related offences, in Jamaica, has now reached disproportionate if not crisis levels.

One major reason why corruption has been having free rein in Jamaica is that it has historically competed unsuccessfully for the attention of the JCF, the DPP and the judiciary.

unbalanced arrangement

In what has become an alarmingly unbalanced arrangement that is now seriously hurting Jamaica, corruption has repeatedly lost out, for attention, to offences against the person and, in particular, to an average national murder rate which now stands at more than 1,500 per annum for the last 10 years. No one, it seems, is taking the matter seriously and the perceived reasons for this are as troubling as they are varied.

Deepening the problem regarding corruption in Jamaica, it is arguable that neither the JCF nor the Office of the DPP was, in the first place, structured, or adequately resourced, to effectively and efficiently investigate and prosecute sophisticated crimes of corruption, or other potentially complex white-collar crimes which have now come to the fore. Indeed, in the case of the Office of the DPP, even more troubling questions have arisen.

Between December 2010 and February 2011, the Anti-Corruption Branch of the JCF, the OCG and the Jamaica Commission for the Prevention of Corruption have all publicly lamented the fact that several criminal matters which they have separately referred to the DPP had not been prosecuted.

In the case of the JCF, on December 9, 2010, on International Anti-Corruption Day, Assistant Commissioner of Police Justin Felice, who oversees the JCF's Anti-Corruption Branch, while publicly acknowledging the JCF's outstanding successes in laying corruption charges against several low-ranking police officers, raised concerns about referrals regarding senior police officers of the JCF which had been conveyed to the DPP, but which had not resulted in criminal prosecutions.

On February 17, 2011, while appearing before a joint select committee of Parliament, I, myself, tabled before the committee a formal written report of the OCG, in which it was asserted that of the roughly 40 criminal referrals which had been formally sent by the OCG to the incumbent DPP, Ms Paula Llewellyn, in the preceding three-year period, not one had to date been brought before the courts to test its judicial efficacy.

Further, in February 2011, the Commission for the Prevention of Corruption publicly expressed concerns about the failure of the DPP to prosecute literally thousands of matters, involving public officers, which had been referred to it by the commission.

dissatisfied

In particular, the commission lamented the fact that since its establishment 11 years ago, although more than 18,000 persons had been referred to the DPP, only 512 of the matters had been acted upon. The commission also signalled that it was dissatisfied with the number of matters that were thrown out by the DPP, noting that this frustrated the oversight body's efforts at reducing corruption.

But even if the commission of corruption and other related offences were today being effectively and efficiently investigated and prosecuted in Jamaica - a situation which, unfortunately, is not the case - the fact of the matter is that the sanctions that are associated with breaches of the said offences are so low that they cannot possibly serve as a deterrent, but yet nothing is being done about it.

A case in point is the innumerable OCG recommendations which have been made to have the situation remedied as regards the prescribed sanctions for the three anti-corruption offences that are specified under the Contractor General Act. The subject sanctions have remained, for the last 28 years, at the inexplicable low level of a fine not exceeding J$5,000 and/or to imprisonment for a term not exceeding 12 months.

The situation with respect to criminal breaches of the Government's Procurement Rules and Procedures is not dissimilar.

Despite specific public promises that were made by former Prime Minister Golding on September 11, 2007, on the occasion of his official inauguration into office, to impose sanctions for breaches of the rules governing the award of government contracts, and to make it "more difficult, more hazardous with stiff penalties for violations", the sole sanction that was eventually promulgated into law was "a fine not exceeding one thousand dollars or imprisonment for a term not exceeding three months or both".

One thousand Jamaican dollars, at current rates of exchange, is equivalent to less than US$12. This is roughly the price of four loaves of bread in Jamaica. Obviously, then, this has made a total mockery of the commitment that was given by the administration that it was genuinely serious about fighting corruption.

As a matter of urgency and necessity, it is, therefore, crystal clear that the situation in Jamaica is in dire need of critical address. Significantly tougher criminal sanctions must be legislated, and enforced, if corruption in public contracting is to be effectively tackled. These must include mandatory custodial and economic-based penalties, where appropriate.

the incontrovertible fact

Should the Jamaican State fail to act accordingly, then we will all be doomed, for it is an incontrovertible fact that a criminal will always proceed with his criminal conduct if his risk-benefit analysis of the situation always suggests to him that it will be beneficial for him to so proceed.

I allude to the report of the Bruce Golding-chaired committee (i.e. the Report of the Committee Appointed to Recommend Legislation for the Establishment of the Office of the Contractor General), which was completed and submitted, in March 1982, to then Prime Minister Edward Seaga.

Paragraph 1.3 (ii) of the report reads as follows:

"In launching the work of the committee, the chairman [Mr Golding] indicated that the independence and authority of the contractor general would be guaranteed in the Constitution and this would be done as part of the process of constitutional reform."

However, and despite the fact that 29 years have since passed, the Commission of the Contractor General is still, today, governed by an act of Parliament - an act whose provisions can be arbitrarily interfered with should the government of the day feel, for example, that a sitting contractor general has become too "overzealous" or intrusive.

The OCG continues to remain under the threat of a clear and present danger of political interference.

Grave harm is being caused, and will continue to be caused, to Jamaica by the failure of successive administrations to act decisively, proactively and aggressively to do what is right by Jamaica, versus doing that which is right by the measuring stick of political expedience.