Catching 'big fish': The need for a single anti-corruption agency

Professor Trevor Munroe, Contributor

Two events have occurred within the last few days that have reinforced my conviction that Jamaica needs a single anti-corruption agency with powers of investigation, arrest, and prosecution if the National Integrity Action Forum (NIAF) is to achieve a critical, foundational objective, and if our people are to attain more meaningful results in the combat of corruption.

In relation to the NIAF objectives, at the launch on January 28, 2009, I emphasised one central conclusion of the Jamaica Cor-ruption Assessment Report (2008, of which I was co-author) which framed the establishment of the NIAF: "The 'continued success or failure' of the struggle against corruption ... depends on the vigour with which the country's system of justice can investigate, arraign, prosecute, and convict key 'big fish' accused of corruption."

Helping to identify and eliminate impediments to the successful pursuit of this goal has been one of NIAF's central goals.

This objective relates to the growing concern of our people with the incidence of corruption, a concern reflected in the 2008 survey results which revealed that Jamaicans regarded corruption as the second thing most wrong with Jamaica, behind crime and violence. By September 2010, a Don Anderson poll revealed that a majority of our people regarded corruption as that which is "most negative about Jamaica". Despite this growing sense of urgency, and despite the fact that more than 85 per cent of our people believe that some politicians are connected to criminal elements ('Changing attitudes to corruption', The Gleaner, April 14, 2010), there has been no recent prosecution or conviction of any big fish accused of corruption.

To rectify this deficiency, two recent events dramatise for me one reason why we continue to lag so far behind while other countries forge ahead and reconfirm the need for a single anti-corruption agency - one which would merge the Corruption Prevention Com-mission, the Parliament Integrity of Members Commission, and the Office of the Contractor General (earlier advocated by the OCG) - to focus exclusively on the investigation and prosecution of the corrupt, particularly in high places.

The first event relates to the report in The Sunday Gleaner of January 9, 2011, of Friday's opening of the Hilary session of the Home Circuit Court, a report which yet again the avalanche of work indicates beneath which corruption cases are being buried in the present arrangement of our criminal justice system.

One also has to look, I might add, at the number of prosecutors on the establishment of the Office of the Director of Public Prosecutions (ODPP) - 43 attorneys (see The Civil Service Establishment Act, The Civil Service Establishment (General) Order 2010) - to handle the deluge of prosecutions at the Supreme Court level, largely relating to offences against the person, and with little or no specialised training in corruption-related cases.

federal politician convicted

The second event which reinforced my conviction of the need to restructure our anti-corruption institutional framework comes out of the United States. It was the conviction and sentence to three years in prison (on January 10) for money laundering and conspiracy of Tom DeLay, the former House majority leader under President George W. Bush and one of the most prominent Republicans in the US. This is but the latest in a list of federal politicians convicted of crimes related to corruption. Under the Bush presidency (2001-2008), there were five convictions from the executive branch (including Steven Griles, former deputy to the secretary of the interior), and eight from the legislature, primarily related to corruption. Under the Clinton presidency (1993-2000), there were two from the executive (including Webster Hubbel, associate attorney general), and 12 from the legislature.

Big fish are now being brought to justice in jurisdictions comparable to Jamaica. In Sierra Leone, for example, former Fisheries and Marine Resources Minister Haja Hafsatu Kabbeh was found guilty in October 2010 on five counts of misappropriation of public funds. She was fined 30 million Leones for each of the five counts, or concurrently run a three-year jail term for all five counts. In March 2010, another Cabinet minister, Sheku Tejan Kamara, who headed the health and sanitation ministry, was found guilty of awarding contracts to his cronies without opening them up to public tender. He was sentenced to five years' imprisonment but avoided jail by paying the alternative fine of US$40,000.

These successes against previous untouchables in Sierra Leone were a direct result of the fulfilment of a political commitment made by President Ernest Koroma to strengthen Sierra Leone's Anti-Corruption Commission (ACC) to give it powers of investigation, arrest, and prosecution.

According to Glenna Thompson, former director of investigations, intelligence, and prosecutions of the Sierra Leone ACC: "The commission, before 2007, was nicknamed 'the toothless bulldog'. It would make a lot of publicity. It would make a lot of noise about people who had been arrested, but then ... nothing seemed to be happening because these cases would then tend to be stuck once sent to the Attorney General's Office, for whatever reason, whether it was political or administrative."

Now: "... The Anti-Corruption Commission is a success story in Sierra Leone ... the one department or the one government (agency) that comes out on top of others ... is the Anti-Corruption Commission because the success rate is high." (Interview with Glenna Thompson, October 14, 2010.)

To achieve success and to respond adequately to the concerns of the people of Sierra Leone, the authorities had to think outside the box. So do we. Undoubtedly, much effort and some gains are being made in Jamaica's combat of corruption:

In 2009, a senior police officer was tried, convicted, and sentenced to prison for corruption.

An MP and former junior minister is before the court on corruption charges.

Between January and August 2010, almost 200 police personnel were separated from the Jamaica Constabulary Force (JCF) or charged with corruption.

More than 100 civil servant declarants have been brought before the courts at the instigation of the Corruption Prevention Commission, and in December 2010, two cases were on trial before the courts. (See letter to the editor, Jamaica Gleaner, December 20, 2010, by Justice Chester Orr, chairman, Commission for the Prevention of Corruption.)

There is now 100 per cent compliance with the Contractor General Act regarding timely submission of quarterly contract awards by public-sector entities.

There is a court and a judge in Kingston assigned to hear corruption cases.

The country's rating and ranking on the 2010 CPI has improved for the first time after three successive years of decline.

But there is consensus that these gains are far from adequate, that corruption in high places remains rampant, and that anti-corruption institutions need to be reconfigured to achieve significant success.

Despite significant violations of the Parliament Integrity of Members Act, no MP has been convicted for offences under this statute.

No convictions have taken place for 'illicit enrichment' under the Corruption Prevention Act.

Between March 2008 and December 31, 2009, "the OCG has made over 30 formal criminal offence referrals to the Office of the Director of Public Prosecutions". However, none of these referrals appears to have given rise to criminal charge, arrest, and prosecution. (See the Twenty-third Annual Report of the Contractor General of Jamaica, January to December 2009, p.13.)

Between January 1 and August 31, 2010, 55 files were sent by the Anti-Corruption Branch of the JCF to the DPP. Forty-four rulings were received, 24 of which recommended criminal prosecution, and nine convictions secured. No doubt, corruption-related issues form a small part of the workload and responsibilities before the ODPP.

something must be done

Against this background, a consensus has emerged that something must be done to make Jamaica's anti-corruption institutions more effective in the combat of corruption. Hitherto, one of the main institutional outcomes of this consensus is the Corruption (Special Prosecutor) Act now before the Parliament. This legislation, in effect, merges two of the country's anti-corruption institutions and their functions into the new Office of the Special Prosecutor. It, however, omits the Office of the Contractor General, arguably the country's critical anti-corruption institution to the extent that corruption offences, especially by big fish in the public and private sectors, disproportionately relate to Jamaica's public procurement system, and to the extent that it incorporates trained specialists in anti-corruption matters.

If we are to come to grips more effectively and urgently with the cancer of corruption eating away at Jamaica's system of governance, this deficiency must be repaired. There has been support for a single anti-corruption agency from significant elements in the media, civil society, the private sector, the parliamentary Opposition, and the governing Jamaica Labour Party, through the G2K. Prime Minister Golding himself has indicated that he "has an open mind" on the issue.

The proposed Special Prosecutor Act, in its present form, should not be allowed to close the issue. It should be "put on hold" either to facilitate amendments to approximate the single anti-corruption agency with prosecutorial powers, or to allow for the draft of a new bill to bring about this result.

If we truly understand that corruption kills development, combating corruption more effectively is a life-and-death matter for Jamaica, particularly for the poor who suffer most from continuing underdevelopment.

Professor Trevor Munroe is director of the National Integrity Action Forum, and visiting fellow of the Sir Arthur Lewis Institute of Social & Economic Studies, UWI.