Editorial | No backsliding on integrity

While we reject accusations that the Integrity Commission (IC) behaved with deliberate malice against Prime Minister (PM) Andrew Holness, there is little doubt that it bungled the handling of a ruling by its prosecutor exculpating the PM from allegations of cronyism in the award of contracts.

Indeed, the imbroglio underlines the need to tweak the law relating to how and when rulings by the director of corruption prosecutions are tabled in Parliament or otherwise made public.

The controversy, however, oughtn’t to be seen by politicians as an opportunity or licence to eviscerate the law, so as to provide shelter for public officials against anti-corruption oversight.

If anything, the brouhaha is an argument for greater transparency, not less, including the excision of Section 53 (3) from the Integrity Commission Act – the notorious gag clause that prevents the IC from speaking in any way about an investigation until it is concluded and a report is tabled in Parliament.

The foundation of the controversy is a probe that was done by the IC’s director of investigations into Mr Holness’ role, if any, in the award of contracts in the mid-2000s – while he was education minister – to a construction company, Westcon, owned by a former employee, friend and business partner.

In two instances, the director of investigations, Kevon Stephenson, concluded that there was prima facie evidence that he did. As is mandated by the law, Mr Stephenson in his report of the commissioners recommended that it be referred to the director of corruption prosecution, Keisha Prince-Kameka, to, as the legislation says, “take such action as may be deemed appropriate”. The law also requires that when a report contains recommendations of this type it be submitted to Parliament for tabling. That is what happened last week with respect to the Holness/Westcon report.

However, a day later the Integrity Commission also sent to Parliament Ms Prince-Kameka’s ruling that the allegation that Mr Holness had interfered in the procurement process in favour of Westcon and his friend, Robert Garvin, could “no longer be substantiated as there is no evidence of the alleged interference”.

OPERATE INDEPENDENTLY

The Integrity Commission Act requires that the director of investigation and the corruption prosecutor operate independently of each other and explicitly prohibits a single person doing both jobs. The evolution of the Holness/Westcon affair is similar to the police undertaking an investigation of an alleged crime and the director of public prosecutions (DPP), having reviewed the file, concludes that the evidence doesn’t meet the threshold of a criminal act and therefore prosecution.

The complication in the Holness/Westcon matter, however, is timing – rather than substance and process.

It was not clear when the director of investigation’s report was sent to Parliament before it was tabled. But in the 24 hours between that event and the tabling, and release, of Ms Prince-Kameka’s ruling, the initial allegations against Mr Holness were widely reported, inciting claims that the IC acted with malice against the prime minister. The insinuation is that Ms Price-Kameka’s ruling was deliberately held back.

There is nothing in the law, as the Integrity Commission pointed out, that mandates the tabling of rulings by the director of corruption prosecution. That it happened in this case, which the IC said was “in the interest of full and early disclosure”, suggests that the commission treated the ruling as a special report of the kind it is empowered to send to Parliament as it sees fit.

“It is worth repeating and stressing that publication of the Ruling (by the director of corruption prosecution) could not be done before or simultaneously with the report,” the IC said in a statement. “It had to await the tabling of the report (by the director of investigations). That is the law as crafted by Parliament …”

ACCORDANCE WITH THE LAW

Acting in accordance with the law is important. But given the sensitivity of this matter, it oughtn’t to have been beyond the creative competence of the commission, without breaching Section 53 (3), to have both documents tabled in Parliament at the same time, or at least on the same day. Indeed, the clear distinction ought to be noted between the publication of the documents and their tabling in Parliament, which makes them public. It is a moot question of whether sending both documents to Parliament at the same time would breach the law, which, from our vantage point, doesn’t seem to be the case.

That this matter involves the prime minister gives it greater currency and might have influenced the apparent speed with which Ms Prince-Kameka crafted her ruling and the fact that was made public. What is not known is whether she has made other such rulings and if others are outstanding, or for that matter if there are referrals which she intends to prosecute. Making this information available would not impinge on the independence of the director of corruption prosecutions.

Indeed, Section 54 (5) of the Integrity Commission Act obliges the director of investigations, when he discovers no corruption on wrongdoing to recommend to the commission, “that the person who was subject of the investigation be publicly exonerated of culpability as the commission sees fit”. The commission has to act unless the individual demurs. What, however, the current situation has shown is that this is not the only route to exculpation or vindication.

But perhaps its greatest revelation from this affair – if that was ever in the dark – is the absurdity of the gag clause – Section 53 (3). It must be removed immediately, while work continues on the other necessary adjustments to the law.