Estudio Final: Eastern Caribbean States

INTER-AMERICAN CONVENTION AGAINST CORRUPTION AND ITS IMPLEMENTATION IN THE EASTERN CARIBBEAN STATES

ANALYSIS ON THE ADJUSTMENT OF CRIMINAL LEGISLATION TO THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION AND REGIONAL DRAFT MODEL LEGISLATION

Project Consultant

GENERAL SECRETARIAT
SECRETARIAT FOR LEGAL AFFAIRS
TECHNICAL SECRETARIAT FOR LEGAL COOPERATION MECHANISMS
ORGANIZATION OF AMERICAN STATES

ANALYSIS ON THE ADJUSTMENT OF CRIMINAL LEGISLATION TO THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION ALL ORGANIZATION OF EASTERN CARIBBEAN STATES

I am pleased to present to the Organization of American States an analysis of anti-corruption legislation in the Organization of Eastern Caribbean States (OECS) and two draft bills.

Firstly, I thank persons in the Organization of Eastern Caribbean States (OECS) who conducted research into the domestic laws of the various States relative to corruption legislation. They are:

Miss Jose Laurent of Antigua and Barbuda; Mr. J. Browne, University of the West Indies Law Library conducted research in respect of Dominica; Miss Karen Hughes of St. Kitts and Nevis; Miss Karen Stephen-Dalton of St. Lucia; Mrs. Petrona Sealey-Browne of St. Vincent and the Grenadines. From the beginning of this year Mrs. Sealey-Browne and myself have been working together on drafting some legislation for St. Vincent and the Grenadines.

To satisfy the requirements of the Inter-American Convention against Corruption Member States are to have provisions in their domestic legislation that reflect the provisions of the Convention. To incorporate the provisions of the Convention I have drafted two bills – Integrity in Public Life and Prevention of Corruption. I shall now refer to existing legislation in the various States:

ANTIGUA AND BARBUDA

Antigua and Barbuda has recently tabled in Parliament two Bills - Integrity in Public Life and Prevention of Corruption the provisions of which are substantially in compliance with the provisions of the Convention. The Integrity Bill provides that persons in Public Life as listed in a Schedule are to declare their income, assets and liabilities to the Governor-General.

Those persons are Members of Parliament, Members of the Judiciary and Magistracy, Members of the various Service Commissions, senior members of the Civil Service –persons drawing a salary not lower than the salary of Administrative Secretary; and police officers not below the rank of Inspector, members of statutory authorities, Government agencies and boards and State enterprises partly owned by the State and Directors appointed by Government.

The Bill enacts that a person in public life may place his assets or part of those assets in a blind trust for the purpose of the Bill and file a copy of the trust deed with the Governor-General. Where assets are so placed the declarant need not in his declaration give more particulars of those assets than the amount and description of the assets placed in that trust and the date that this was done.

A trust company managing assets of a person in public life by way of blind trust must reply fully to inquiries made by Independent Counsel or the Director of Audit relating to the nature and management of the assets of the blind trust.

A blind trust is stated to be created when a person in public life enters into an agreement with a qualified trust company in a number of stated instances.

Upon a judge being satisfied on an ex parte application made by the Director of Public Prosecutions that there is reasonable cause to believe that a person in public life who is required to file a declaration has committed an offence under that Bill or under the Prevention of Corruption Bill, the Governor-General consults with the Prime Minister and the Leader of the Opposition and appoints an Independent Counsel who is protected in the same way a Director of Public Prosecutions is protected under the Constitution, that is, in the performance of his functions he is not subject to the control or direction of any person or authority.

The Independent Counsel must be an Attorney or barrister at law or solicitor of at least seven years standing who is charged with the responsibility of making inquiries to determine the accuracy of the financial affairs of the person of whom a judge in Chambers is satisfied that there is reasonable cause to believe has committed an offence.

The Independent Counsel is responsible for inquiries and investigations and the Director of Public Prosecutions is the person who authorizes the institution of prosecutions.

Except for one offence (section 10 (2)), there can be no prosecution for any offence under the Act unless the written consent of the Director of Public Prosecutions is obtained and there can be no prosecution if five years have passed since the person has ceased to be in public life. Section 10 (1) provides that information relating to declarations and records of the Commission is not to be communicated to unauthorized persons. Subsection (2) creates an offence if information is disclosed and states the penalty.

The Prevention of Corruption bill lists the acts that constitute corruption as set out in the Convention.

There is an offence of unexplained property which falls under two limbs: Where a public servant (a) maintains a standard of living above that which is commensurate with his present or past official emoluments (b) is in control of pecuniary resources or property disproportionate to his present or past official emoluments, and he fails to give a satisfactory explanation to the Court as to how he was able to maintain that standard of living or how those such pecuniary resources or property came under his control, he is guilty of an offence.

On an ex parte application by the Director of Public Prosecutions supported by affidavit evidence to a Judge in chambers, the Judge if satisfied that there is reasonable cause to believe that a person has committed an offence under the Act, may make an order authorizing the Independent Counsel to apply to the Governor-General to release to the Independent Counsel the declaration of assets and liabilities filed under the Integrity Act and to cause a search to be made, by a police officer not below the rank of Inspector, of any premises named in the order and to inspect and make copies of documents as specified in the order.

DOMINICA

GRENADA

In Grenada many of the corruption offences in the Convention are enacted in the Criminal Code (Cap. 1). Those offences are regarded as misdemeanors attracting penalties ranging from two to seven years imprisonment. With one exception there is no penalty of imposition of fines. The exception is the offence where a person bribes a Minister or a Minister accepts a bribe. That offence attracts both a fine and imprisonment.

Some of the corruption provisions relate to ‘public, juror and voter’. It will be necessary for Grenada to decide whether the Criminal Code should be amended leaving in the provisions in the code for ‘juror and voter’ and removing ‘public officer’ to a Prevention of Corruption Bill.

Extradition Act 1998 (No. 22 of 1998) – (into operation by Governor-General’s Proclamation) provides extradition procedures between Grenada and a foreign State (defined as ‘any state, other than Grenada, that is not a Commonwealth Country”). Where a person is accused in that State of the Commission of an extradition offence or is alleged to be unlawfully at large after conviction of an extradition offence by a court in that State, a person in Grenada may be arrested and surrendered to that State.

A person in Grenada who is accused of an extradition offence in a Commonwealth Country or who is alleged to be unlawfully at large after conviction of an extradition offence in that country may be arrested and surrendered to that country. Extradition offence is defined to mean conduct in the foreign State or Commonwealth country, which would constitute an indictable offence in Grenada punishable with imprisonment of five or more years.

Upon receipt of an extradition request the Minister for Foreign Affairs issues an authority to proceed.

Mutual Assistance in criminal matters (Commonwealth Countries) Act 1998 (No. 5 of 1998) (into operation on Governor-General’s proclamation) makes provision for assistance to be given to Commonwealth Countries. ‘Commonwealth Country’ means (a) a sovereign and independent country within the Commonwealth, together with any dependent territory designated by that country, and (b) each country within the Commonwealth, which, though not sovereign and independent, is not designated for the purpose of (a) above. The Central Authority in Grenada to receive request is the Attorney General

Article VI of the Convention lists five acts of corruption that need to be considered by Member States in providing necessary legislation. At present there are provisions in the Criminal Code of Saint Vincent and the Grenadines and Saint Lucia that provide for the offence of corruption of public officers and the extradition of public officials.

In Saint Kitts Nevis there are no provisions in the Criminal Code that deal specifically with acts of corruption. The offence of bribery is listed as an extraditable offence in the Fugitive Offenders Act. Saint Lucia has incorporated acts of corruption in its Integrity in Public Life Act under section 31 and Schedule II. Saint Lucia is in process of drafting a new Criminal Code.

There are certain provisions relating to corruption in the Criminal Law of Saint Vincent and the Grenadines and consideration will need to be given to repealing those if the newly drafted Prevention of Corruption Bill is accepted.

Saint Lucia’s Integrity in Public Life, section 33 - prevents any form of reprisal whether civil or criminal against someone who, in good faith or believing that complaint allegations are substantially true, has reported to the Commission any act of corruption.

Section 25 of the Act enacts a penalty of up to $50,000.00 or a term of imprisonment not exceeding five years or both for failure to file a declaration. In some instances a fine is stated to be an amount not less than the value of the thing involved in the Commission of the offence and to imprisonment for three months.

MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT

Under Article XVII of the Convention, the designation of a central authority does not require legislative measures as this is provided for in the Mutual Assistance in Criminal matter Act in Member States. These Acts (Section 3) provide for the establishment of a Central Authority, which is established for the purpose of transmitting and receiving requests for assistance. The Article implies that where the authorities are already provided for they may be relied upon. The Act in Saint Vincent and the Grenadines makes provision for mutual assistance between Commonwealth territories. Saint Vincent and the Grenadines has signed a Mutual Assistance in Criminal matters Treaty with a non-Commonwealth country, the United States of America

Items 1 – 3 of the Convention deal with standard of conduct for public officials – correct, honorable for the proper fulfillment of their public functions: the mechanisms to be put in place to enforce that standard of conduct and the necessity of sensitizing public officials of their responsibilities and the ethical rules governing their activities.

There are Acts, Regulations and Staff Orders in Member States that govern the public service. Saint Vincent and the Grenadines is considering whether Staff Orders should have the force of law. Those Acts, Regulations and Staff Orders in Member States do not cover members of Parliament. As the intent of the Convention is to extend to all persons who hold public office, I have drafted an Integrity in Public Life Bill which will be as it were a Code of Conduct and a Prevention of Corruption Bill which provides for acts of corruption mentioned in the Convention to be offences.

I looked at the penalty provisions in Prevention of Corruption Bill of South Africa and Antigua. I am referred to provisions in Jamaica where on summary Convention for a first offence for an act of corruption the penalty is not exceeding one million dollars or imprisonment up to two years or both. For a subsequent offence up to three million dollars or three years or both. On conviction in a Circuit Court for a first offence penalty is five million dollars or five years or both. For a subsequent offence ten million dollars or 10 years or both. I have provided penalty of $100,000.00. It will be for the working groups and eventually Member States to decide on penalty levels.

In these small territories it may be difficult to have two commissions (one for each bill). I have therefore provided for one Commission for both bills. The Commission is established in the Integrity in Public Life bill and in the Prevention of Corruption bill it is stated that the Commission referred to in the bill is the Integrity Commission.

I have attempted to maintain a balance – to have declaration of assets etc. while providing some privacy. Transparency but not ‘talking point’. Members of the Commission are to be appointed by the Governor-General from persons who have certain qualities. The Governor-General has the authority to remove a member who does do not match up to what is expected. A member may be removed for misbehavior, e.g., communicating the business of the Commission to unauthorized persons.

The territories are small and to deter mischief making by providing false information I have provided for an offence of maliciously providing the Commission with false information.

There are offences in the Prevention of Corruption Bill where a person in public life is required to give some information relative to the offence. An accused is innocent until proven guilty. This concept stands. There is no burden on a person accused of an offence to prove beyond a reasonable doubt that he is guilty. What the bill attempts to do is to provide for a person accused to show (civil burden of proof) that is more probable than not that he knows nothing about the offence with which he is charged. What is required? Some evidence that satisfies the civil burden of proof - of probability.

TENDERING

Except for providing that it is an offence to do certain acts in relation to tendering, I have not attempted to incorporate tendering systems as I think that that requires separate legislation. Further, it may well be that the existing systems under the Finance and Audit Act and Financial and Stores Rules in member States are adequate and what may be required is to provide penalties in addition to surcharges for breaches of systems and procedures.

AN ACT to make provision for the Prevention of Corruption in the performance of public functions and to give effect to the provisions of the Inter American Convention Against Corruption and to provide for matters incidental thereto or connected therewith

BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the House of Representatives [Assembly] and by the authority of the same, as follows:

PRELIMINARY

Short Title	1. This Act shall be cited as the Prevention of Corruption Act 2003.
Interpretation	2. In this Act, unless the context otherwise requires;
	“benefit” includes any property, service or advantage whether direct or indirect;
	“Government company” means a company registered under the Companies Act, being a company whose policies the Government or an agency of Government, whether by holding shares or by financial input, is in a position to influence;

	“Government official of another State” means a public official of a state other than (…);
	“Lawful earnings” includes any property inherited by will or on intestacy;
	“Property” includes money and all property, real or personal and things in action;
	“Public body” includes:
	(a) The Senate and the House of Representatives (House of Assembly) Cabinet and Cabinet Committees; (b) Ministry or Department of Government; (c) A corporation established by an Act of Parliament or a subsidiary company of that Corporation; (d) A commission, statutory board, public authority or other body of any description, whether its members are paid or unpaid;
	“Public officer” has the meaning given to it under the Constitution; “Public official” means a person who is a member of a public body or a public officer;

Application of Integrity Commission	3. (1) The Commission referred to in this Act is the Integrity Commission established under the Integrity in Public Life Act 2003. (2) In addition to the functions and powers of the Integrity Commission under section 11 of the Integrity in Public Life Act, the Commission may consult with any person, institution or organization in the exercise of its powers of (a) investigating an act of corruption reported to the Integrity Commission; (b) conducting an inquiry into a complaint received by the Integrity Commission.
Acts of Corruption	4. A person commits an act of corruption if he
	(a) solicits or accepts, whether directly or indirectly, any article, money or other benefit or advantage for himself or another person for doing an act or for omitting to do an act in the performance of his functions as a public official; (b) in the performance of his duty as a public official, performs or omits to perform any of his duties in a public body for the purpose of obtaining any benefit for himself or any other person; (c) offers or grants directly or indirectly to a pubic official any article, money, or other benefit, for doing or omitting to do any act in the performance of his duties as a public official; (d) allows his private interest to conflict with his public duties or to improperly influence his conduct in the performance of his duties as a public official; (e) improperly uses for his benefit or that of a third party any classified or confidential information that he has obtained in his duties as a public official; (f) communicates to an unauthorised person any classified or confidential information obtained in the performance of his duties as a public official with a view to assisting that person to obtain a benefit; (g) improperly uses for his benefit or that of a third party, any property belonging to the Government or any Statutory body or government company to which he has access as a result of or in the course of the performance of his functions; (h) hinders or delays the performance of a duty of a public official with a view to obtaining a benefit for himself or another person; (i) aids, assists or is an accessory after the fact or participates in any manner in the commission of, or conspires to commit any act of corruption under this section.

Offence in respect of procuring tenders	5. (1) A public official who, in relation to a contract for performing any work, providing a service or supplying articles or material (a) accepts, agrees or offers to accept whether directly or indirectly any benefit for himself or for another person for awarding a tender to a particular person; (b) gives, agrees or offers to give whether directly or indirectly any benefit to another person for the purpose of obtaining any benefit for himself or for another person as a reward for awarding a tender to a particular person; (c) gives to a person confidential information in order to enable that person to tender or not to tender in a particular manner in order to obtain an unfair advantage in tendering commits an offence (2) A person who, in relation to a contract for performing any work, providing a service or supplying articles or material

	(a) offers to a public official whether directly or indirectly any benefit for himself or for another person for awarding a tender to a particular person; (b) offers to a public official whether directly or indirectly any benefit for the purpose of obtaining any benefit for himself or for another person as a reward for awarding a tender to a particular person.
	commits an offence.
Transnational bribery	6. (1) A citizen of the State or a person who is habitually resident in the State who offers or grants directly or indirectly to a government official of another state any article or money or other benefit in connection with any economic or commercial transaction, in exchange for any act or omission in the performance of the public functions of that public official, commits an offence. (2) For the purposes of subsection (1) “habitual resident” means a person who has a home or business in the State or both or who lives or visits the State.
Offences and penalties	7. (1) A person who commits an act of corruption under section 4 (a), (b), (c), sections 5 or 6, is liable
	(a) on conviction on indictment to a fine not exceeding $50,000.00 or to a term of imprisonment not exceeding 15 years or to both fine and imprisonment; (b) on summary conviction to a fine not exceeding $25,000.00 or to imprisonment not exceeding 5 years or to both fine and imprisonment; (c) to be disqualified from holding any public office for a period of seven years from the date of conviction for the offence;

	(2) A person who commits an act of corruption under section 4 (d), (e), (f), (g), (h),(i) is liable
	(a) on conviction on indictment to a fine not exceeding $30,000.00 or to a term of imprisonment not exceeding 10 years or to both fine and imprisonment; (b) on summary conviction to a fine not exceeding $15,000.00 or to imprisonment not exceeding 5 years or to both fine and imprisonment. (c) to be disqualified from holding any public office for a period of seven years from the date of conviction for the offence;
	(3) The Court may make
	(a) a confiscation order; (b) an order directing payment to a public body the value of any property obtained by the convicted person in relation to the act of corruption for which he was convicted. (4) A person who possesses or is in control of any property knowing that the property or part of the property or proceeds of the property were obtained or derived directly or indirectly from the commission of an act of corruption, commits an offence and is liable (a) on conviction on indictment to a fine not exceeding $50,000.00 or to imprisonment for a term not exceeding ten years or to both fine and imprisonment; (b) on summary conviction to a fine not exceeding $20,000.00 or to a term of imprisonment not exceeding five years or both fine and imprisonment. (5) A person who
	(a) aids, assists, or is an accessory after the fact or participates in any manner in the commission of or conspires to commit an act of corruption; (b) procures the commission of an act of corruption or who attempts , or counsels another, to commit an act of corruption
	commits an offence and is liable

	(i) on conviction on indictment to a fine not exceeding $50,000.00 or to imprisonment not exceeding ten years or to both fine and imprisonment; (ii) on summary conviction to a fine not exceeding $20,000.00 or to imprisonment not exceeding five years or to both fine and imprisonment.
Property acquired bona fide	8. Property acquired bona fide without notice that a corruption offence has been committed is not liable to forfeiture.
Defence not available to person charged	9. Where in any proceedings for an offence under this Act it is proved that a public official accepted a gift or benefit believing or having grounds to believe or to suspect, that the gift or benefit was given as an inducement or reward for doing or forbearing to do an act in the performance of his functions it shall be no defence that that public official
	(a) did not actually have the power or right to so do or to so forbear from any act; (b) accepted the benefit with no intention of doing or forbearing to do any act
Defence available to person charged	10. It shall be a defence to a person charged with an act of corruption if he satisfies the Court, on a balance of probabilities, that he had no knowledge of the circumstances giving rise to the act of corruption.
Presumption of Corruption	11. Where in any proceedings for an offence it is proved that in seeking to obtain a contract from the government, a government department or a public body, a person has received or given money, a gift or any other benefit, that gift or benefit shall be presumed to have been paid or given and received as an inducement or reward unless, on a balance of probabilities, the contrary is proved.
Consent of the Director of Public Prosecutions	12. No prosecution shall be brought under the provisions of this Act unless the consent of the Director of Public Prosecutions is obtained.
Making of false allegation	13. A person who maliciously makes a false allegation or maliciously provides false information related to an act of corruption commits an offence and is liable
	(a) on conviction on indictment to a fine of $30,000.00 or to imprisonment for a term of five years or to both fine and imprisonment; (b) on summary conviction to a fine of $15,000.00 or to a term of imprisonment not exceeding three years or to both fine and imprisonment.
Complaint to the Integrity Commission	14. (1) A person who has reasonable grounds to believe that a person in public life has committed an act of corruption may complain in writing to the Integrity Commission stating
	(a) the particulars of the breach; (b) the nature of the evidence that the person proposes to produce in support of the complaint; (c) other particulars as may be prescribed in regulations by the Minister.
	(2) A complaint to the Integrity Commission under this section may be presented in person or may be sent by registered post to the Chairman of the Integrity Commission.

Inquiry by the Integrity Commission	15. (1) Where the Integrity Commission receives a complaint, the Integrity Commission on examination of the complaint may (a) reject the complaint if it considers it is frivolous, or that it does not relate to a matter the Commission is empowered to deal with; (b) hold an inquiry into the complaint giving an opportunity to the person in public life to be heard; (c) on conclusion of an inquiry, forward the complaint, and any documents to the Director of Public Prosecutions if it considers that there is sufficient evidence to support a criminal charge.
	(2) Where a person in public life has been exonerated following an inquiry into an allegation of corruption, the Integrity Commission
	(a) shall in writing inform the person who made the complaint of the finding of the inquiry; (b) shall in writing inform the person in public life of the finding of the inquiry; (c) publish the finding of the inquiry in the Gazette.
Action by Director of Public Prosecutions	16. The Director of Public Prosecutions shall inform
	(a) the Integrity Commission of any action taken following the receipt of a complaint from the Integrity Commission against a person in public life; (b) the appropriate Service Commission where a complaint relates to a public officer or a legal officer; (c) the appropriate board, authority or body with which the person in public life is employed.
Where public allegation is made	17. Where a public allegation is made that a person in public life has committed an act of corruption, a person desiring to make a compliant to the Integrity Commission relative to that act of corruption must lodge
	(a) a complaint with the Integrity Commission not later than three months from the date on which that public allegation was first made; (b) a complaint with the Integrity Commission not later than three months from the commencement date of this Act.
Regulations	18. The Minister for Legal Affairs, after consultation with the Integrity Commission, may make regulations as may be necessary for giving effect to the provisions of this Act.
Commencement	19. This Act shall come into operation on a date to be fixed by Proclamation by the Governor-General.

AN ACT to establish an Integrity Commission in order to ensure integrity in public life; to obtain declarations of the assets, liabilities, income and interest in relation to property of persons in public life, to give effect to the provisions of the Inter-American Convention against Corruption and for matters incidental thereto and connected therewith.

BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the House of Representatives (Assembly) and by the authority of the same as follows:

Short

Title

1. This Act may be cited as the Integrity in Public Life Act 2003.

Interpretation

2. In this Act unless the context otherwise requires;

“assets” include all property beneficially held whether in or out of the State and whether acquired or owned directly or indirectly, and any rights and benefits enjoyed on a continuous basis;

“benefit” includes any property service or advantage derived directly or indirectly;

“chairman” means the chairman of the Integrity Commission;

“commencement date” means the date of commencement of the Act as published in the Gazette;

“dependent child” includes a step child, a child born out of wedlock or a child adopted under the Adoption Act who is under eighteen years and is living with the person in public life;

“Commission” means the Integrity Commission established pursuant to Section 3 of this Act;

“document” includes, in addition to a document in writing.

(a) any map, plan, graph or drawing;

(b) any photograph;

(c) any disc, tape, sound track or other device in which sounds or other data not being visual images are embodied so as to be capable, with or without the aid of some other equipment of being reproduced therefrom;

(d) any film, including microfilm, negative, tape or other device in which one or more usual images are embodied so as to be capable with or with out the aid of some other equipment of being reproduced therefrom;

“income” includes

(a) money or money’s worth derived from whatever source or acquired in or out of the State whether directly or indirectly;

(b) all receipts by way of salary, fees wages, requisitions, profits, grants, emoluments, rents, interests, commissions, bonus, pensions, annuity or benefit and all income within the meaning of the Income Tax Act;

“interest in relation to property” means

(a) a legal or equitable interest in the property; or

(b) a right, power or privilege in connection with the property.

“liability” includes all obligations to pay or to transfer money whether in or out of the State;

“person in public life” means

(a) a person holding an office referred to in Schedule 1 of this Act;

(b) a person acting continuously for a period of not less than six months in any office set out in Schedule 1 of this Act

“property” includes money and all property, real or personal and things in action;

“public body” includes

(a) the Senate and the House of Representatives (House of Assembly) Cabinet and Cabinet Committees;

(b) Ministry or Department of Government;

(d) a commission, statutory board, public authority or other body of any description, whether its membe

By