Sat | Sep 23, 2017

Trevor Munroe | Prosecuting the corrupt – better late than never

Published:Sunday | May 14, 2017 | 5:52 AM
Trevor Munroe

Not a day passes without us hearing that Jamaica has a culture of corruption. The spider man, Anancy, lives, so we are told. No doubt there is some truth in this observation.

Hence, more than 13 years ago in a study that I authored on Jamaica's National Integrity System, one of my main recommendations was: "The implementation of a comprehensive programme of public education and cultural-change management on the issue of corruption". Today, the re-establishment of the Values and Attitudes Committee co-chaired by Education Minister Ruel Reid and former minister, Ronald Thwaites, must be welcomed, and its work needs to proceed more rapidly.

However, the situation in Jamaica is far more complex. Reliable national surveys indicate that there has been a significant decline in the percentage of Jamaicans paying bribes for a passport, birth certificate, to avoid a ticket for speeding, etc. - from more than one-third in 2006 to between 10 and 15 per cent nowadays, from well above to well below the global average.

At the same time, between 90 and 95 per cent of our people believe that some, most or all members of parliament, government officials and business executives are "involved in corruption".

Jamaica's official National Security Policy (Ministry Paper 63, 2014) laid in Parliament by the then prime minister seems to agree. It describes "corruption of elected and public officials" as a "Tier 1 threat, a clear and present danger".

In relation to this matter, once again, 13 years ago, my study concluded with this recommendation: "The urgency of enforcement of anti-corruption law against offenders from high society - in the public and private sectors - as one means of reaffirming equality before the law, undermining popular conviction that the highly placed corrupt are untouchable ... ."

 

JUDICIAL EFFICACY

 

Eight years later, the contractor general, in his annual report to Parliament (2011), argued that a "primary reason why corruption has been having a free rein in Jamaica is that it has historically competed, unsuccessfully, for the attention of the Jamaica Constabulary Force, the Office of the Director of Public Prosecutions, and the judiciary ... . Corruption has repeatedly lost out, for attention, to offences against the person and, in particular, to an average national murder rate", which consistently puts Jamaica in the top 10 countries globally with the highest homicide rate. Largely because of this, in the three-year period 2008-2010, "of the roughly 40 criminal referrals ... formally sent by the OCG to the incumbent DPP ... not one has, to date, been brought before the courts to test its judicial efficacy." (OCG Annual Report, 2011)

Fast-, or rather, slow-forward to 2017. Prime Minister Holness pilots and the House of Representatives passes "an Act to Promote and Enhance Standards of Ethical Conduct for Parliamentarians, Public Officials and Other Persons" - including the establishment of the Office of the "Director of Corruption Prosecution". This officer shall "institute, undertake and have the conduct of prosecutions in respect of acts of corruption" and "shall not be subject to the direction or control of any person or body in relation to the conduct of his prosecutorial functions".

Obviously, however, this officer has to function within the terms of Jamaica's Constitution and is, therefore, "subject to the powers conferred on the director of public prosecutions", including the power to stop prosecutions. In my view, this Section 94 of Jamaica's Constitution needs review and amendment. However, experience teaches, most recently with the amendment establishing the Charter of Fundamental Rights and Freedoms, in 2011, that changes to important sections of our fundamental law takes 15-20 years.

 

INTEGRITY COMMISSION ACT

 

The long-standing urgency of targeting prosecutions for corruption makes me unprepared to wait another 10 years to fully unfetter the director of corruption prosecutions, especially in circumstances where a bill proposing this office was first laid in Parliament by Prime Minister Bruce Golding in 2008. In this, as in so many other instances, the good should not be the enemy of the perfect.

So, the Senate now needs to debate and pass the Integrity Commission Act with this provision for the director of corruption prosecutions. Happily, if belatedly, Jamaica's standby agreement with the IMF 2016-2019 stipulates that this should be done by October 2017. Concurrently, the Economic Growth Council recommends similar action.

No one, certainly not I, pretends that this act is perfect, but it is a clear advance. I, therefore, agree with the contractor general in his 2012 annual report "that the proposed single anti-corruption agency would take us a far way to address ... corruption related cases".

To this extent, it would facilitate action that might restore some confidence in the man in the street that the corrupt in high places are not untouchable. It might also well help Jamaica catch up with an increasing number of countries where the corrupt among business executives, the political directorate, high-level public officials are the subjects of serious investigation, focused prosecution, and, where the evidence justifies, conviction, heavy fines and exemplary jail sentences.

- Professor Trevor Munroe is executive director of National Integrity Action. Email feedback to columns@gleanerjm.com and tmunroe@niajamaica.org.