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Courageous leadership needed in an era of cowardism — Part 3 The case for impeachment

Tuesday, November 14, 2017

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One of the many noble promises the Jamaica Labour Party (JLP) made in its 2016 manifesto was that of raising the bar of governance by tackling corruption. On page 18, under the heading 'Strengthening Corruption-Prevention Authorities', the manifesto states:

“No More Cover-Ups

“We will make provisions for reports from the auditor general, contractor general, public defender, Corruption Prevention Commission* and Integrity Commission* to be debated within 30 days of submission to Parliament. *until replaced”

Clearly the JLP as Government has reneged on this, as many other promises, including:

(a) 100 per cent increase in the minimum wage

(b) No new taxes to fund the $1.5-million tax-free threshold

(c) “Swift and appropriate sanctions…for breaches of the laws which relate to public service and governance, particularly as they relate to the Corruption Prevention Act, the Financial Administration and Audit Act, the Public Bodies Management & Accountability Act, Contractor General Act, and the Procurement Rules and Guidelines.” (page 18 of the manifesto)

In my assessment, the reneging on these solemn undertakings represents both potential deception (Anancyism), as well as cowardism. The promise to debate reports within 30 days has turned out to be such a hoax, evidenced by the stonewall the prime minister has built concerning the report of the Office of the Contractor General on the $600-m de-bushing programme and the refusal of the Speaker of the House to entertain questions on the matter.

Courage as accountability

In Part 1 of this series, published on October 31, 2017, I suggested that cowardism walks in public life like a tall but feckless man, while courage is dwarfed — the consequence of which is social decay. In Part 2, published on November 7, 2017, I explored some principles of courageous leadership, one of which is “holding self and others accountable”. I ended Part 2 by asserting that: “A prime minister, president, or CEO who is not personally accountable does not have the moral authority to hold even the bearer accountable.”

One of the ways in which countries communicate the importance of accountability on the part of those who run for, and serve in public office is the institution of a system of impeachment. The practice of impeaching public officials is not devoid of its disadvantages and is not insusceptible to abuse, and even corrupt use, but that fact that it has its disadvantages does not make it an unwelcome option as part of the strategy to improve governance and accountability. Both the Bruce Golding and Andrew Holness administrations promised to enact impeachment legislation, but as the Golding Administration backed away, the Holness Administration can be wagered on to back away — due in large measure to cowardism — and the People's National Party (PNP) can be expected to be less than vocal about it.

Basis for impeachment

Over the last year or so I have been highlighting various behaviours on the part of those who serve in public office which point to lack of accountability, transparency, and respect for law and order. These behaviours would be the subject of impeachment proceedings in many countries. Some of the behaviours include:

(1) expenditure of public funds in ways, and on projects, that either do not give value for money or are designed to further political interests;

(2) misleading the country concerning budgets and the impact of new measures;

(3) failure to adequately account for funds that are received for specific purposes;

(4 failure to respond to queries about how funds were used and who were involved in the use of those funds;

(5) involvement with criminals.

One of the most recent cases of impeachment took place in Brazil (one of about two dozen countries that have impeachment laws). Brazil's President Dilma Rousseff was impeached for allegedly misleading the country on the state of its finances.

Neither of our major political parties is in favour of amending the constitution or passing new laws to make it possible for parliamentarians (Members of Parliament and senators) to be impeached, but if we are serious about accountability and serving the country with integrity it is a step that we must take.

There are at least five categories of offences for which parliamentarians should be subject to impeachment proceedings. These are:

(i) Having been found guilty of a high crime or misdemeanour: This category, as framed in the United States Constitution, is really about “to whom much is given is much expected”. Thus, something like refusal to pay property taxes, while inexcusable for everyone and punishable by fines and interest, should attract a higher penalty for a legislator. Thus, if a Member of Parliament or Cabinet minister were to have been found not to pay property taxes, or if he/she has a business that did not pay over General Consumption Tax and/or statutory returns for several periods, and made no arrangements to pay, and could reasonably be deemed to have sought to avoid paying, that parliamentarian should be subject to impeachment proceedings for that action.

(ii) Involvement in crime or established association with known criminals: Given the country's high crime rate, (though the principle would apply if the level of crime were less), public officials who employ, associate with, do business with, protect, or otherwise act in ways that aid and abet the agenda of criminals should be required to answer for such actions by way of impeachment proceedings.

(iii) Lying materially to Parliament or in the submission of information to any organ of the State: Impeachment should be possible in circumstances in which an elected official utters information that is materially important, which information turns out to be false. For example, if a public official submits false information on his or her filings with the Integrity Commission, or makes a statement in Parliament which has the effect of misleading the Parliament or the country in critical ways, that elected official should be subject, other things considered, to impeachment proceedings.

(iv) Misdirection of the country in critical matters: Purveying of false promises to the electorate should be grounds for impeachment. This could arise when a political party commits to taking policy steps that it claims will not have adverse macroeconomic consequences, despite there being credible assessments otherwise that show that those policy actions would have adverse economic consequences. This measure would be used in conjunction with another measure I proposed which contemplates the setting up of an Independent Office of Budget and Financial Analysis (IOBFA) whose remit would be to cost proposed policies of political parties.

If a political party insists on making a commitment to voters that runs contrary to the findings of the IOBFA, and later assumes office and enacts those policies, and adverse consequences result, that should be a basis for impeachment. Thus, the making of wild and ill-informed promises, of which both the JLP and PNP are guilty, could be a thing of the past.

Impeachment should also be possible when a Government deliberately uses false information as a pretext for undertaking police/military operations, which affect people's right and freedoms, in a community that is 'aligned' to one's political opponents.

(v) Misuse/waste of public funds or use of public funds for personal gain: When the actions of a public official result in the waste of taxpayers' money in which the public official could, or ought to, have exercised controls to prevent such waste, or where there is evidence that the funds were used for personal gain, there should be, in addition to possible criminal proceedings, impeachment proceedings.

Impeachment proceedings

Given the partisan nature of our parliamentary system — in which decision-making and voting is not predicated by one's stance on issues, but done solely along party lines — any effective mechanism for impeachment would have to be outside the control of parliamentarians or their hacks.

I suggest the following features:

1. That any member of the public or other elected official be able to initiate impeachment proceedings against/in relation to any elected official. This would require that the initiator makes a submission outlining the facts and circumstances to a designated authority, possibly the Corruption Prevention and Integrity Commission (CPIC). The CPIC would ideally be headed by a person at the level of a High Court judge and would be staffed, as is the case with the Office of the Contractor General, by lawyers, senior police officers, forensic auditors, private investigators, and other investigative personnel.

2. The CPIC would conduct an investigation (which would include interviewing the initiator) to establish whether the facts and circumstances reported are true. The CPIC would not pronounce on the weight and implications of the facts, it would simply establish veracity.

3. Upon completion of its investigation the CPIC would make a report to Parliament in which it lays out its factual findings (which could include further facts beyond those submitted by the initiator).

4. Parliament, upon receipt of the report, would then be required to refer the matter to a specially constituted panel of three or five individuals, whose selection would be prescribed in law. This panel would include two High Court judges, one of whom would be the chief justice or president of the Court of Appeal. The panel would be empowered to call witnesses, but others who wish to offer testimony could offer same in writing and be cross-examined by lawyers representing the subject of the impeachment proceedings. The panel would produce a report that speaks to the veracity and weight of the allegations and make an unambiguous conclusion concerning the allegations. This report would be tabled in Parliament with one of four recommendations:

a. Material does not rise to the level warranting impeachment — case dismissed;

b. Material significant to warrant censorship by Parliament;

c. Material of such a nature to warrant removal from office with prospect of returning to public office in the future;

d. Material of such a nature to warrant removal from office and permanent barring from holding other public office.

The relevant law should also provide that a prime minister be barred from circumventing impeachment proceedings by calling snap elections. Thus, once the process has reached the second stage, it should be made unlawful for the Government to call a by-election or a general election. In this regard, a subject's resignation could not obviate or derail an impeachment probe.

The state of affairs in Jamaica warrant this level of conversation. The voting public ought to have the feature of a simple democracy. After all, it's been promised to us by our leaders in this age of cowardism.

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