MEDIA & SOCIETY
The Anti Corruption Commission Bill 2008
By
Jul 18, 2008, 04:45

The Advisory Committee needs to be strengthened to act as a check on the powers of the Commissioner, particularly in relation to appointments within the commission to avoid the commission being used as a fraternal organization.

This is the most contentious part of the bill which arguably fails to address civil liberties issues and is arguably in breach of the 1991 constitution. The first question to ask is whether there is a need for new corruption offences?  The 2000 Act had eight offences which are listed in ss7-15 of the Act. In this new bill in addition to the existing eight there are now an additional nineteen {19} new offences listed in the new bill. The major question to ask now is whether the commission has the capacity to undertake investigations in these new areas of corruption. We are of the view that they do not have the capacity and these new offences are unnecessary for the following reasons:

One of the reasons why the Commission has been woefully ineffective is the fact that it undertakes too many unfruitful investigations which do not result in any meaningful conclusions. It is therefore necessary to critically scrutinize the investigations conducted since the inception of the Commission in 2000 to 2008, a period of 8 years. 713 cases were investigated by the Commission and only 669 were completed whilst 44 remain uncompleted, 8 years after it started.  Of the completed number of 669 cases, 572 were discontinued for lack of evidence or other reasons {inefficiency}. 97 were referred to the Attorney General for action. So effectively of all the cases handled by the Commission, 81% came to nothing whilst only 15% of those cases went to the Attorney General. The Attorney General in turn sent 59 cases to the courts for prosecution, over 61% of cases sent to him. The rest, the Commission has failed to state what happened to them. On average therefore, the Commission has only been able to refer 12 cases per annum for the past 8 years, costing tax payers of this country a whopping Le666, 000,000 per case. Clearly, this indicates that the Commission has wasted resources in cases that end up not bearing fruit.

The Commission does not seem to have a focus on the type of investigations it needs to embark upon thereby duplicating the functions of the police.  Here we have a Commission with a budget of Nine Billion Leones {9,000.000, 000 per annum undertaking investigations for amounts not exceeding Le500, 000 on average. Such a matter could simply be referred to the police for prosecution. The Commission should not simply be prosecuting cases simply because they amount to corruption under the Act but should concentrate on the most serious of matters that effectively under mine the state. Therefore the Commission should only be interested in matters of high value that would result in revenue coming back to government.

Another reasons why the Commission should not be given these powers is the fact that most of the penalties in the new bill imposed requires a minimum fine of thirty million Leones for offences committed under the Act.  In a situation where a public office is alleged to have misappropriated Le500, 000 he faces a minimum fine of Le30, 000,000 or minimum or three years imprisonment which is hugely disproportionate to the offence committed. Such an offence should be referred to the police to prosecute or the bill may make provision for a maximum fine which would then give judges the discretion to impose commensurate fines. Thus, a man who misappropriates Le500, 000 and a man who misappropriates five hundred million would in law be paying the same fine. This is outrageously absurd.

Section 26: The new section 26 of the Act significantly increases the penalty to a minimum fine of thirty million Leones or three years imprisonment.

Section27: This section creates a new offence of possession of unexplained wealth. This section is dangerous and must be expunged. This section allows the Commission and its Commissioner to witch-hunt any person they have a personal problem with. Let’s face the fact; the majority of public officers employed in this country are maintaining a standard of living above that which is commensurate with their official salary. The vast majority of public officers earn between Le 100,000 and Le500, 000 but drives cars costing at least Le 600, 0000. Are they all corrupt criminals? Can we prosecute all of them? The law criminalizes any one who maintains a standard of living above his official salary. Is this law feasible? Is it criminal to maintain a standard of living above your official income? This law would do nothing to fight against corruption but rather to punish innocent people whose salaries cannot maintain them and have to rely on other means of support which as it is shameful that a government cannot provide the basic needs for its citizens.

On the other hand how do we measure a satisfactory explanation? What may be satisfactory to one person may be unsatisfactory to another person. The question is by what yardstick do we judge whether an explanation is satisfactory or otherwise? What happens in a situation where a person who has donated a large gift to a public officer enabling him to live above his salary is now dead? How can the public officer prove to the satisfaction of the court that he received those gifts from the dead person? Again the penalty is disproportionately high.

Section 28: This section adds a further offence of offering which was absent in the 2000 Act.

Section 29: This section adds a new section of using influence for contracts.

Section30. The penalty is disproportionately high for such an offence.

Section 31:  This section overlaps with the criminal law in terms of offences of obtaining money by false pretences with a disproportionately high penalty.

Sections 32-42 are offences which again arguably do nothing to stop the fight against corruption. In a situation where an agent does not disclose his corrupt activities, that corrupt offence is not disclosed.  Such offences would have been best left to other regulatory authorities.

Section43: this section creates an offence that is too wide. How does one define abuse of position? A public officer who may perhaps do so as a result of duress or threats could still be convicted as a result of the fact that there is no defence created under the sub section. Such an enactment is too wide.

Section44: This creates an even wider offence. What if a public officer uses his office telephone to call his wife. He has committed an offence under section 44 of the Act as he has conferred an advantage for himself by using his office. That telephone call can cost a public officer Le30000000. That is extraordinarily ridiculous but that is the effect of the new law if it is passed in parliament. Even parliamentarians would not be exempt from such laws. Further, where your relative however distant has an interest in an issue, one might well find himself being prosecuted under this law however indirect the interest is. This does not appear to be proportionate in the fight against corruption.