A GUY'S VIEW

A few years ago, the Prevention of Corruption Bill was introduced to Parliament. As I understand it, that Bill successfully passed through both Houses of Parliament. As I write, it has still not been proclaimed as law.

The absence of the final step in making this Bill an Act that forms part of the laws of Barbados becomes useful political fodder for a few persons who have either not read it, or have closed their eyes to the true import of that document.

 

There are several good things about the Bill that would make the proponents of such legislation happy. The wide spectrum of corrupt practices it covers is impressive. Part VI of the Bill sets out a number of offences that may be pursued. Their sections are listed before them here: 32. Accepting, offering or soliciting an advantage; 33. Bribery of a public official; 34. Bribery with regard to contracts; 35. Embezzlement by a public official;  36. Bribery of a foreign public official; 37. Solicitation by a foreign public official; 38. Bribery of an official of a public international organisation; 39. Soliciting by an official of a public international organisation; 40. Trading in influence; 41. Soliciting trade in influence; and 42. Possession of unexplained property. 

 

A cursory look at these provisions also indicates that they are not indigenous in origin. Put differently, these offences did not come out of the Barbadian experience with corruption. Instead, they address the activities which the international bodies that drive this agenda have concerns about and what has formed the basis of the United Nations convention.

 

The United Nations Convention against Corruption has been the culmination of years of work by certain countries to have this challenge addressed. That Convention eventually came into force in December 2005. Barbados signed on December 10, 2005, but has not yet ratified the Convention. One expects that this will be done once the principles of the Convention become part of our domestic law.

 

The Convention requires States Parties to pass domestic legislation to give effect to its provisions. The Bill was the first step in that direction. However, that effort has been placed on pause, maybe for good reason.

The Bill makes provision for the establishment of the Prevention of Corruption Commission. That Commission will have responsibility for managing the affairs of the Bill.

 

Section 12 (1) of the Bill provides that: “Subject to subsection (2), every person in public life shall file with the Commission, a declaration setting out: (a) his assets, income and liabilities; (b) his office or offices; (c) the assets of his spouse and children who are under the age of 18 years and are not married; and (d) any gift or series of gifts in value exceeding $500 given to him, directly or indirectly, by a person who is not a member of his family or household or a relative.”

 

The Second Schedule sets out the persons in public life that are captured by the Bill: Chairmen, Board Members, and Chief Executives of Statutory Boards and Companies controlled by Government; Heads of Government Departments; Judges; Magistrates; Members of Parliament; Members of the Prevention of Corruption Commission; Permanent Secretaries and Officers of Related Grades; President and Chief Executive Officer of a Registered Trade Union.

 

It is challenging to understand why a member of the Board of your child’s school, who is paid a stipend that may be enough to put gas in his car to take him to Board meetings, should be making a public declaration of his spouse’s assets.

 

One may also raise a similar question with respect to trade unionists, but they are usually not shy to speak, so their silence must mean that they have no problem with making the declarations contained in this Bill. They cannot claim with any conviction that they are unaware of its contents, for it was not secretly done, and some of them are the associates of persons who have been calling for the passing of this Bill into law. One would hate to think that they have spoken without reading.

 

Where a person captured by the Bill holds assets in trust for another person, that fact must be disclosed. This means, in effect, that the personal information of a person to whom the Bill does not immediately apply, may have to be disclosed in circumstances that may never have been contemplated. 

 

One unintended consequence of this Bill becoming law would be the loss of many people from public service. Withdrawal from this kind of service would be the only way for one to protect oneself and one’s family from public inspection of one private affairs. It is one thing to ask senior civil servants to make public their assets and those of their spouses; it is another to ask the volunteers who sit on school boards and Constituency Councils to do the same. 

 

The Bill captures assets of persons that have no government income. In the net are persons who do not handle any portion of the public purse and have no opportunity for contact with it. Neither are they candidates for bribery of officials. One would assume that such a wide reach would not have been anticipated by the introducers of this legislation. If they were fully aware, they should rethink their position.

 

The major challenge that may arise from bringing about the major overhaul that should come to this Bill is that the final version is still expected to reflect the contents of the UN Convention. The Bill expressly states that one of its purposes is the implementation of the Inter-American Convention Against Corruption adopted on March 29, 1996 in Caracas, Venezuela; (b) Articles 8 and 9 of the United Nations Convention Against Transnational Organised Crime relating to Corruption adopted on September 29, 2003 in New York; and (c) the United Nations Convention Against Corruption adopted on October 31, 2003 in New York. If it addresses this country’s legitimate concerns but does not follow the relevant Conventions, Barbados may still be regarded as not complying with international requirements. Our expert drafters may find it difficult to strike this balance.