That loud rumble you hear from beneath the earth's surface isn't an earthquake. It's PNP Comrades calling for the immediate reinstatement of Richard Azan.
According to the OCG, Azan approached contractor John Bryant and facilitated arrangements for him to illegally construct shops for rental to constituents on government land (Spaldings Market parking lot) without seeking requisite parish council approval. Bryant (who doesn't own the land but built the shops at his expense) unlawfully charges rent (collected on his behalf for reward by Azan's constituency office), thus depriving the council of its rightful revenue.
The shops obtained electricity supply via illegal connection to the market's supply. The shops weren't invisible, yet nothing was done to regularise the situation until it became a cause celebré six months after rental began to be paid.
Azan asserts, without demur from anybody, he didn't profit financially from the adventure and his sole concern was assisting constituents in distress. But, in so doing, he overstepped his authority; usurped the parish council's authority; and expected that whatever resulted would be retroactively regularised by the council. He also helped to set Bryant's rental rates without reference to the property owner's representative.
Politically Corrupt Actions
Without question, Azan knowingly set about facilitating the illegal construction of those shops and their subsequent 'rental' to the contractor. These are politically corrupt actions, regardless of whether or not the politician involved benefited financially. They are immoral because they breach rules of propriety and perverse because the strict system of dealing with government lands has been perverted by Azan's actions. That's the classic definition of corruption (marked by immorality and perversion), and I wholeheartedly endorse the contractor general's findings in this regard.
Politicians benefit from actions like these politically, not necessarily financially. These actions ensure popularity at the polls and future electoral success, which keeps the politician in a position of power and privilege. If one politician can abuse that position with impunity, what else is he likely to do that might or might not result in personal financial benefit?
When the matter first came to public attention, Azan admitted these misdeeds, said he was probably wrong to have acted in that way, but steadfastly maintained that he was only acting as a frustrated MP who had his constituents' benefit at heart. He refused to step aside and, under pressure, the prime minister said she'd await the report of the contractor general before taking any action. According to her, Azan had done nothing wrong "as minister". Poor She. She clearly doesn't understand, after decades as an MP/minister, what's the nature of the public trust involved in those offices.
I congratulate this new contractor general on his professional methodology and conduct in delivering his report to Parliament first; selected government agencies second; before widely circulating his findings. Also, I applaud him this contractor general for conducting his investigations behind closed doors without publicly pointing fingers at anyone until they were complete. Now THAT's how it's done, whether you agree or disagree with his findings.
The contractor general's conclusions are fact, not hysteria, based, and, in my opinion, sound and fair. His decision to refer the matter to the DPP is unassailable, as there appears at least a prima facie case against Azan for conspiracy to defraud the parish council for the contractor's benefit and, in facilitating the contractor's collection of rental from property not owned by the contractor, there seems at least a prima facie case of aiding and abetting fraud or obtaining money under false pretence.
The contractor general found Azan to have acted in a politically corrupt way and referred the matter to the DPP for her ruling on criminal prosecution. The DPP declined to prosecute because she believes criminal intent can't be established.
There's no magic to criminal intent and no burden on the prosecution to read anyone's mind. If you consciously set out to break the law and do, in fact, break the law, that right there is criminal intent. Your motive (to benefit constituents) is irrelevant, although motive, if it can be proven, can be a strong incentive for a jury to convict.
The DPP, in a lengthy press release, relied on three main arguments in opining there was no criminal intent. First, nothing was done clandestinely, and members of the parish council knew all about it. In fact, announcements were made at the opening of the Spaldings Market.
But the DPP ought to be able to separate members of the parish council from the council itself. Unless the council formally voted to consent to this diversion of government revenues, all this means is that some members of the council might also be involved in a criminal conspiracy (at least, prima facie) or aided and abetted it. It's not the DPP's job to pronounce on guilt or innocence. That's not what I am doing here. The issue is: Is there enough material to present a case to the court and let justice decide?
Second, the DPP argued there could have been no intent to defraud the parish council as all Bryant et al were about in the collection of rental was to ensure that he recovered his outlay. But, surely, that's for the jury to decide? The construction of the shops was an illegal enterprise. Therefore, money spent on it is dead money, to which there's no right of recovery. That's like saying I shot you in the head so I'm taking the cost of the bullet from your wallet as you lie dying. If he thought he could build illegal shops and then get back his money from illegally renting them, that's a double whammy right there.
But it gets worse. Bryant alleges he spent $175,000 on each shop. The rental was fixed at $5,000 per month. No tenancy agreement was done to establish that rental would only be paid for 35 months. Surely, we should ask a jury if that's normal where rules galore have already been broken; or whether it proves deliberate criminal intent; or reckless abandon?
On the face of it, this rental was to be collected ad infinitum and arrangements were only made for an accounting with the council after the lid was blown off the pot and the bad-smelling stew made public.
The DPP, in finding that Bryant was transparent and above board in the collection of rent, wrote, "Of particular note is the fact that he established a formal rental-collection process that was transparent. When the OCG probed this issue, they were presented with a formal spreadsheet by Mrs [Bridget] Daley-Dixon and receipt book of payments made by each of the vendors."
Spreadsheet? Receipt book? Good grief, where was the restricted period tenancy agreement? Was this to go on forever? There is no "formal rental collection process" without a lease or tenancy agreement.
The DPP opines that breaches of approval procedures alone are not proof of criminal action. True. But that's where you build on your own land. When you capture someone else's land and collect rent from your illegal act, that sounds fairly criminal to me. Everybody was OK with it, including Bryant, Azan, Mayor Barnswell and named councillors. NOT ONE OF THESE PERSONS HAD THE RIGHT TO PERMIT THIS ILLEGAL ACTIVITY. Each and every one knew, or ought to have known, wrong was being done.
Worse, the plan was for Bryant to benefit by the collection of rent while the mayor turned a blind eye and Azan actively assisted.
Worth putting before a jury?
The question we must ask is this: Are these facts worth putting before a jury for it to decide whether or not the plot was to get Bryant to provide shops for Azan's constituents so that Azan and the council members could obtain political favour and Bryant could profit from the rent?
Was such a plot foiled only by the matter being made public? If it hadn't been made public, what evidence is there that there was any system in place to stop the payment of rent to Bryant when he had recouped his outlay? Should a jury decide whether this was a philanthropic act by all concerned or if hanky-panky was afoot?
I find the DPP's reluctance to prosecute strange, but that's her jurisdiction, and she's entitled to shy away from another possible embarrassment, especially after the Kern Spencer disaster. The DPP's ruling has triggered a cacophony from Comrades for Azan to be reinstated, while Azan himself has been quoted as saying, "God is God!"
Sorry, God has nothing to do with this. The resignation calls were made from the story broke. Nobody needed criminal conviction. When the OCG's report confirmed your actions politically corrupt, the calls intensified. You resigned without waiting on criminal charges. Neither your resignation nor possible reinstatement depends on the outcome of any criminal trial.
Holders of a Sacred Trust
Here's what politicians can't wrap their heads around. Separate from their obligation to the criminal law (an obligation they share with every citizen), they are the holders of a sacred trust of which every Jamaican ought to be a beneficiary. That trust is created when we vote them into office. We put them in positions of privilege where, for example, they can impose taxes on us from which they exempt themselves and drive luxury SUVs.
They ought not to behave in a manner which can be construed as an abuse of that trust or bringing government into disrepute. Unlike in the criminal law where the citizen is innocent until proven guilty, in governance, any suspicion of untrustworthiness, let alone an admitted one, means resignation.
Take, for example, a married British minister caught in an extramarital affair with a teenage model or cross-dressing in private in furtherance of an illicit homosexual affair. He resigns instantly. Why? He hasn't breached the criminal law. It's because he's in breach of the electorate's trust. His misconduct brings government into disrepute. Also, who knows what he'll disclose during pillow talk that could compromise important national priorities. He's also vulnerable to blackmail with frightening national consequences.
Even if there's no apparent personal benefit in any particular case, political corruption must be swiftly punished. There's no telling how political corruption can be manipulated, and any opportunity for manipulation must be quickly squashed.
Peace and love.
Gordon Robinson is an attorney-at-law. Email feedback to firstname.lastname@example.org.