…no penalties, vague timeframe for officials to take action
and public office holders
The long-awaited ministerial Code of Conduct has been gazetted by the coalition Government, but despite the concerns raised by Transparency Institute of Guyana Inc (TIGI) when it reviewed the draft, some of its most critical recommendations have been ignored.
After reviewing the document earlier this year, one of TIGI’s main recommendations had been for penalties the State could impose for specific breaches by Ministers and officials to be incorporated within the Code of Conduct. According to the anti-corruption advocate, the Code was silent on these penalties.
But while the Code lists transgressions such as taking and soliciting bribes, exhibiting discrimination while discharging one’s duties and using public property for unofficial purposes, the Code remains completely silent on what form of penalties, if any, it will take.
At the time, TIGI had complained that while there was focus on breaches of the Code, the President, David Granger, and the Minister of State, Joseph Harmon, were identified as the relevant authorities for administering disciplinary action.
Since the Code was silent on specific penalties for breaches, TIGI had warned that this left these two officials with the responsibility to determine the penalties. TIGI had noted that instead of leaving this to the will of the very people the Code would govern, specific penalties for some breaches should be laid out.
“This will improve public confidence in the process. The Code itself needs to be fleshed out in much greater detail, and we strongly recommend taking guidance from model legislation such as the UNCAC.”
But the amended Code of Conduct makes no mention of any disciplinarians. In fact, Article 12, which TIGI said made mention of the President and his Minister, has been removed.
No timeline
Other problems that TIGI identified with the draft were the absence of a specific time limit for resolving conflicts of interest involving Ministers and public officials in Article Four. It had noted that phrases like “as soon as practicable” could lead to abuse.
This advice has gone unheeded by the Government, with Article Four (1) stating “that public officials would not allow private interest or the pursuit thereof to conflict with their duties or improperly influence conduct”.
“Provided that any such conflict that tends to interfere with the proper discharge of his or her public duties shall be reported to the Integrity Commission for guidance on a resolution as soon as practicable in favour of the official duties of the person in public life.”
And while TIGI had warned the Government against leaving it up to the conflicted Minister to avoid conflict of interest situations, Article Four (3) states that public officials will “take reasonable steps to avoid, resolve and disclose any material conflict of interest, financial or non-financial, that arises or is likely to arise”.
It seems that one of the few changes that were made in accordance with input from the transparency advocate was expanding Article Eight, which deals with sexual misconduct of public officials.
TIGI had expressed criticism of Article Eight, saying that it only referenced sexual misconduct while performing official duties. According to TIGI, “this is an unnecessary and undesirable restriction.” The organisation had made it clear that sexual misconduct, whether on or off duty, must disqualify anyone from continuing to hold the post of a public official.
In the gazetted version of the Code, Article Eight (1) states that no public official shall “pursue a course of conduct which amounts to offensive sexual comments, gestures or physical contact or such conduct of a criminal nature under the Sexual Offences Act.”
Part two of Article Eight goes on to prohibit sexual misconduct while a public official engages in official duties. In addition, it prohibits an official from using their authority for “sexual gratification”. Again, however, the Code does not specify any steps the Government would take against such deviants, independent of criminal proceedings under the Sexual Offences Act.
A committee was appointed in 2015 to review and strengthen the draft Code of Conduct. Last year, Natural Resources Minister Raphael Trotman had stated while handing over the document to Prime Minister Moses Nagamootoo that the Commission had reviewed similar documents from Africa, Europe and other parts of the Caribbean.
But TIGI has been critical about the overall lack of specificity in the language used to craft the Code, leaving loopholes open for Ministers and others governed by it to escape sanctions. It had noted that “this lack of specificity appears as low commitment to integrity in public office and it can ultimately impede the effectiveness of the Code and erode public confidence”.
Articles
The Code of Conduct is made up of 11 Articles. Article One prohibits public officials from taking bribes, while Article Two focuses on discrimination. Article Three prohibits public officials from accepting “any gift, benefit or advantage from anyone, (except) personal gifts from a relative or friend”. This provision, it states, does not apply to gifts received on behalf of the State.
Article Five states: “No public (official) shall use his or her official influence in support of any scheme or in furtherance of any contract or proposed contract or other matter in regard to which he or she has an interest.”
Article Six has provisions for ensuring confidentiality. It prohibits public officials from disclosing any information that is classified as privileged or confidential, to any unauthorised person. Article Seven prohibits officials from using public property such as money, equipment, supplies or services for unapproved purposes.
Article Nine prohibits public officials from accepting “lavish or frequent entertainment” from any person or entity that the Government has or may have dealings with. This, the Article notes, includes invitations to sporting events and concerts.
Article 10 prohibits officials from using their office in an improper manner for personal gain, while the final article forbids anyone in public life from having outside employment “except with the written consent of the relevant authority”.
Signing off on this code, which is expected to cover Ministers, Members of Parliament and public office holders, was Prime Minister Nagamootoo.
