Seize the opportunity to create a strong, single anti-corruption agency

Claude Robinson

Sunday, February 03, 2013

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THE appointment of Dirk Harrison as the new contractor general could be the start of a process to overcome recent personality and organisational difficulties that have adversely impacted the effectiveness of the Office of Contractor General. However, fighting public corruption will require other steps, including strengthening of the anti-corruption machinery.

Mr Harrison, currently senior deputy director of public prosecutions, replaces the steadfast Greg Christie, who fearlessly insisted that no one was above the law and dramatically increased the number of investigations of alleged corruption but who had far less success in actual prosecutions and convictions.

He had a testy relationship with both past and current administrations and with Paula Llewellyn, the Director of Public Prosecutions (DPP), and at the end of his tenure last November he was clearly a disappointed man.

The incoming contractor general is no stranger to high-profile corruption cases, having successfully led the prosecution against former superintendent of police Harry 'Bungles' Daley — the highest-ranking officer to be convicted on corruption charges. Daley has appealed the conviction and sentencing and the Court of Appeal is scheduled to hand down the verdict February 28.

Mr Harrison's experience as a prosecutor should be seen as a positive in the investigation and prosecution of cases of alleged corruption. But he would need to have a better working relationship with DPP Llewellyn than Mr Christie had. Also, Government must even out the jurisdictional and turf squabbles between the OCG and the office of DPP.

On the first point, one notes this newspaper's editorial of Thursday suggesting that we may be in for more of the same bad blood between the new CG and the DPP because "it has been whispered loudly for years that Mr Harrison and Miss Llewellyn were not on the best of terms at the Office of the DPP."

I am sure the editors have a firm basis for the statement, but my take is that they don't have to like each other to get along because, as professionals in a most vital area of the country's governance, they are sworn to promote and protect the public interest.

Beyond personality to institutional strengthening

Inter-personal relationships and style apart, though, the most urgent need is for institutional strengthening, specifically the creation of a single anti-corruption agency with real teeth if we are to make the difference envisaged when the OCG was established some 30 years ago.

Polls show a majority of Jamaicans believe corruption is widespread. Jamaica currently ranks 83 out of 176 countries on the Corruption Perception Index. We have three anti-corruption agencies — the Office of the Contractor General, the Parliamentary Integrity Commission, and the Corruption Prevention Commission. Yet, the perception persists.

In the Throne Speech at the ceremonial opening of Parliament in May 2012, the governor general told the nation that the Portia Simpson Miller Administration proposed "to rationalise Jamaica's institutional arrangements for fighting corruption by consolidating the three agencies now dealing with the issue into a single anti-corruption agency having strong powers. There will be explicit provisions to prevent abuse of authority". The necessary legislation was slated to be in place by March 2013.

My understanding is that the Government has made some progress towards delivering on its promise. First, Justice Minister Senator Mark Golding appointed an advisory committee headed by retired Supreme Court justice Karl Harrison to make recommendations on how to achieve the Government's stated intention.

I spoke with Senator Golding Thursday and he confirmed that the committee has reported and that Cabinet has considered and approved most of the recommendations.

Drafting instructions were being prepared to write the enabling law. However, given the workload of the Government's office of Chief Parliamentary Counsel, the minister doubted that the legislation would be ready in this parliamentary year, while sounding confident that it would happen "in calendar 2013".

Unsurprisingly, Mr Golding declined to give details on the recommendations or what the Cabinet had approved, except to say that it would be "far-reaching".

Even without knowing Cabinet deliberations, it must be obvious from recent history and practice that there are at least two big issues for resolution: First would be whether to give the single agency prosecutorial powers that can be exercised independent of the office of the DPP; and second, how to set up the administrative arrangement of the new agency to circumscribe the power of a single individual.

On the first matter, I have often written in support of an agency with investigative and prosecutorial powers to give some bite to the bark; to reduce the risks of allegations that make headlines but don't get to the level of prosecution; and to bring earlier resolution to matters which now seem to drag on and on to the distress of the individuals concerned and the cynicism of the public.

Of course, any granting of prosecutorial powers to the new body should not diminish the constitutional protections given to the office of the DPP in these matters. Under new arrangements, the DPP would still have ultimate prosecutorial authority and could enter what the lawyers call a nolle prosequi, thus discontinuing a prosecution if s/he felt the matter should not proceed.

On the matter of how much power is to be placed in the hands one person, one approach could be to have a strong, independent anti-corruption commission with overarching responsibility with an executive director responsible for investigating and prosecuting corruption. The example of the Electoral Commission and a director of elections comes to mind.

Lessons from Sierra Leone

We can also draw on other experiences, including the west African nation of Sierra Leone whose head of the Anti-Corruption Commission, Joseph Kamara, was on a one-week visit to the island last week at the invitation of National Integrity Action (NIA) for just that purpose.

Speaking to reporters Monday he said, to knowing smiles and nods in the audience: "We created an anti-corruption agency in 2000 [because] we realised that corruption was endemic in the society — you pay for a driver's licence, you pay for medical treatment, you bribe your way through traffic, you pay for classes, you bribe lecturers to pass exams."

In 2008, the country made legislative changes which gave the commission the power to prosecute and freeze assets. Since then, according to Kamara, there has been a "tremendous increase in the number of cases before the courts".

"From 2008 until now we've witnessed the topmost officials being taken to court... Fifteen government ministers were tried and convicted by the court," he added, listing the ministers of finance, foreign resources, and health among them. High-level civil servants have also been brought to book. Overall, their prosecution success rate was 70 per cent.

While we study and value other experiences, it's not a matter of copying them. We have to find our own way to meet our situation. But we have to do something new. Civil society and the media must pay great attention to what comes out of Cabinet and goes to Parliament. We must ensure that the OCG, or whatever replaces it, is not emasculated but strengthened. Watch for the design of the governance structure of the new agency; it will tell us a great deal.





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