Mon | Dec 18, 2017

Rodje Malcolm | Impeaching our politicians

Published:Wednesday | November 1, 2017 | 12:00 AM
Rodje Malcolm

When public officials commit wrongdoing, we should be able to impeach them as part of the democratic process. In Jamaica, we cannot.

Successive Jamaican governments have committed to creating an impeachment process. In fact, Prime Minister Holness himself has explicitly promised that this Government would start the legislative process within 100 days of being elected. To date, no government has kept its word.

Democratic accountability cannot be reduced to elections twice a decade. It involves a suite of tools capable of both constraining power and punishing its misuse. Impeachment is one of them. It is a legal proceeding against public officials for corruption, abuse of authority, betrayal of public trust, or other forms of malfeasance.

The benefits to our democracy are not limited to just punishing rogue individuals. In all likelihood, very few officials will be impeached in our generation. However, the legal possibility of impeachment helps regulate the conduct of sitting officials and deters them from wrongdoing. Public officials, like most persons, regulate their actions based on the spectrum of potential consequences to their actions. However, for the political elite, these consequences are rarely severe enough to constrain their behaviour. The prospect of impeachment helps plug that deficit.

Elections every five years cannot provide timely, direct or substantive responses to individual acts of public wrongdoing. It is a myth that gambles on party campaigning and assumes that people will cast ballots to signal their displeasure with separate acts of malfeasance, which is unlikely given Jamaica's strong culture of party-based voting, regardless of individual candidates. It incorrectly assumes that voters will punish entire parties to signal their displeasure with a member's wrongdoing that occurred at some point during a five-year cycle.

Impeachment procedures exist in dozens of other countries to solve this very problem. In 1993, Jamaica's bipartisan Constitutional Commission recommended that the country establish an impeachment process. A parliamentary committee then agreed to adopt "an impeachment process which would provide an effective check on the power of persons who might otherwise be perceived to be beyond challenge". Then, in 2011, the Constitution (Amendment) (Impeachment) Bill was tabled to allow for the impeachment of parliamentarians for specific offences, such as corruption and abuse of power, but Parliament has not considered it, leaving the process incomplete.

The bill has flaws, but most of the necessary provisions are there and can be improved. It just needs to be meaningfully considered by Parliament, as has been promised for years. Moreover, given that Jamaica recently established an impeachment process for the mayors of municipalities under local government legislation, no credible excuse for not extending it to national government exists.

 

How impeachment works

 

The bill proposes a new chapter to the Constitution. Under this proposal, parliamentarians could be punished for acts of malfeasance, called "impeachable offences", that render them unfit to hold public office, or that bring their office into disrepute. There would be four types of offences: (1) corruption or misappropriation of public resources; (2) neglect of duty; (3) abuse of official authority; and (4) abusing the privileges of Parliament. If found culpable, parliamentarians would be censured, removed from Parliament or their ministerial positions, or disqualified from holding public office.

Impeachment proceedings would begin when an empowered person makes an impeachment request to the Parliament. An Impeachment Committee of Parliament would then determine if a sufficient case exists, and, if so, transmit 'Articles of Impeachment' to an 'Impeachment Tribunal' that would decide the case and recommend penalties.

The public would not be able to request impeachment; only specific persons empowered by law. For a request coming from Parliament, three parliamentarians would have to lodge a petition supported by 1,000 registered voters. Otherwise, the request could be made by the political ombudsman, auditor general, contractor general, director of public prosecutions, public defender, director of elections, the Integrity Commission, special corruption prosecutors, or any chairman of a commission of enquiry.

The five-member Impeachment Tribunal appointed by the governor general would have the "same powers as in a court of law". However, it would only be empowered to recommend three possible sanctions: (1) censure of the person; (2) removal of the person from Parliament or from their appointed office (e.g., as minister or prime minister); and (3) disqualification of the person from holding public office, either for a set period or indefinitely.

Once the tribunal recommends, the House of Representatives or the Senate - depending on the accused - would then have final authority to "affirm, modify or override" the decision of the Impeachment Tribunal.

The Government, the Opposition, civil society and a wide range of social and political stakeholders already agree that this would be massively important for Jamaica. The bill has already been drafted. All that Jamaicans have been waiting on is for successive governments to keep their promises.

- Rodje Malcolm is a human-rights campaigner. Email feedback to columns@gleanerjm.com and rodjemalcolm@outlook.com.