Integrity Commission Act weak…TIGI calls for amendments giving power to Minister to be removed

Apr 24, 2017 News

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After a detailed assessment of the Integrity Commission Act and the Government’s proposed amendments, Transparency Institute Guyana Incorporated (TIGI) has discovered a number of worrying areas which could result in abuse of power and dysfunction if left unchecked.
The anti-corruption body made its concerns known via a missive to the press.
The body explained that it was invited by Prime Minister Moses Nagamootoo to review the proposed amendments to the Integrity Commission Act and the Code of Conduct for Ministers of Government, Members of the National Assembly and Public Office Holders as a means of contributing to the ongoing effort to update the instrument.
The body said that its review brought a number of worrying areas to the fore which need to be addressed.

POWERS AND RESPONSIBILITIES
With regard to the Act, TIGI noted that it does not give the authority or power to the Commission to impose sanctions on Ministers or any other public officials.
The anti-corruption body said that ultimately, the Commission has no power to determine any courses of action to be taken against individuals and there are no guarantees that its recommendations will be executed under the Act.
TIGI believes that disciplinary actions should be undertaken pursuant to the recommendations of the Commission when explicit articulation in the Code of Conduct is absent.

CODE OF CONDUCT
According to TIGI, the proposed Code seeks to infuse gender balance in the language by using he or she (and his or her) instead of the more traditionally used masculine pronoun (and adjective).
The body said that it incorporates several revisions and substantial new inclusions that strengthen the Code. Though this attempt at broadening the scope is laudable, TIGI said that it finds several other shortcomings.
In this regard, the body pointed out that some definitions as proposed by the draft Code of Conduct are too vague and as such, need to be tightened.
Among the definitions it cited was the one for Integrity. In the draft document, integrity is defined as “A person in public life and members of his family shall upon assumption of office declare their private interests relating to the duties of the public official, and other interests as required by the Integrity Commission Act and any other law.”
TIGI said that this definition targets conflict of interest, but only samples the requirements of the Principal Act (in Part III, Financial Disclosure). The Act requires disclosures of income, assets and liabilities of the person’s spouse and children and specifies a timetable for such disclosures.
The body said that the definition therefore dilutes the Act and may create a loophole for avoiding disclosures of assets and income.
TIGI said that it advocates firmly for preservation of the intent of the Act through articulation of its full requirements with respect to disclosures in the definition of Integrity.
Furthermore, TIGI also found several articles in the Code troubling. It pointed out that Article Three of the Code essentially stipulates that public officials shall not receive gifts that have the potential to compromise unbiased execution of their duties or as rewards.
TIGI believes that given the poor state in which Guyana has been with respect to corruption perception over time, it would be fair to establish a policy of accepting no gifts at all (except those on behalf of the state) for at least the next 10 years.
With respect to Article 4 of the Code, this focuses on conflict of interest. In addition to making nonspecific references to timeframes for resolving conflict of interest with phrases such as “as soon as practicable” and “as soon as possible” which can lead to abuse, it confers responsibility on the public official to take reasonable steps to avoid, resolve and disclose any material conflicts of interest that arise or are like to arise.
TIGI said that placing the responsibility on the person in the conflict of interest situation to take reasonable steps to address it may thwart the efficacy of the provision.
“We therefore recommend that conflict of interest be reported to a relevant body or individual and that a decision on how to proceed be made for that person. This should apply especially in cases where there is a blood relationship or social relationship existing between a decision-maker and the object of the decision.”
As for Article Eight, this deals with sexual misconduct. However, it references sexual misconduct to performing official duties. TIGI believes that this is an unnecessary and undesirable restriction. The anti-corruption body said that sexual misconduct on or off duty must disqualify anyone from continuing to hold the post as a public official.
Additionally, Article 12 focuses on breaches of the Code. It identifies the President and the Minister of State (as appropriate) as the relevant authorities for administering disciplinary actions. However, it silent on specific penalties for breaches thereby leaving such determinations entirely up to these individuals.
TIGI believes that penalties for some breaches should be enshrined in the Code so that the efficacy of the Code itself does not rely entirely on the will or caprice of the responsible individuals.
The Body said, “This will improve public confidence in the process. The Code itself needs to be fleshed out in much greater detail and we strongly recommend taking guidance from model legislation such as the UN Convention against Corruption.”
It continued, “We also find it necessary to recommend that section 31, subsection (4) of the Principal Act be modified to guarantee that disciplinary actions under the Act will be taken pursuant to the specifications of the Code or to the recommendations of the Integrity Commission in the absence of such prescriptions. TIGI believes that administration of the Code of Conduct which is part of the Integrity Commission Act must require a functional Integrity Commission and this link should be solidified now.”
The Transparency Institute added, “Identification of the Minister of State in Article 12 neglects the potentially temporary nature of this post. The Act itself refers to the “relevant authority charged with the exercise of disciplinary control” and this should be maintained in the Code of Conduct to accommodate the flexible nature of public administration in the country.”
Overall, TIGI said that the Integrity Commission Act needs to be modified to eliminate the terror clause and remove the power to make regulations from the Minister.
The body said that the Code of Conduct itself is very low on specificity and needs to be strengthened especially with respect to specifying penalties for breaches.
Though an exhaustive list is impractical, TIGI said that model legislation with a wide range of specific penalties exists and these can be adopted or modified as appropriate.
The transparency body said that this lack of specificity appears as low commitment to integrity in public office and it can ultimately impede the effectiveness of the Code and erode public confidence.

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