Stakeholder workshop on the Anti-Corruption Bill of The Gambia Outcome document

Transcription

1 Stakeholder workshop on the Anti-Corruption Bill of The Gambia Outcome document From 7 till 9 August 2017, the Attorney General s Chambers and Ministry of Justice of the Gambia, in partnership with the United Nations Office on Drugs and Crime, convened national stakeholders to review the draft Anti-Corruption Bill for the Gambia. The meeting brought together representatives from the Office of the President, the Attorney General s Chambers and Ministry of Justice, the Ministry of Interior, the Ministry of Foreign Affairs, the Ministry of Finance and Economic Affairs, the Ministry of Basic and Secondary Education, the Ministry of Defense, the Ministry of Transport, the Ministry of Environment, the Ministry of Information and Communication Infrastructure, the Ministry of Youth and Sports, the Ministry of Fisheries, the Office of the Ombudsman, The Gambia Police Force, The Gambia Immigration Department, the Financial Intelligence Unit, the State Intelligence Service, The Gambia Prison Service, the Drug Law Enforcement Agency, The Gambia Press Union, and Civil Society as well as Magistrates from the judiciary. Furthermore, international experts took part in the proceedings, notably representatives from the United Nations Office on Drugs and Crime, the United Nations Development Programme, the Nigerian Economic and Financial Crimes Commission, the Sierra Leonean Anti-Corruption Commission and the Liberian Anti-Corruption Commission. Following extensive deliberations, the participants recommended the following revisions to the draft Anti-Corruption Bill: TITLE Revise Gambia to the The Gambia PART I - PRELIMINARY Review the interpretations listed in section 2 and align them with the UN Convention against Corruption, notably the interpretations of public official, property, etc. Review the interpretation of false pretence to ensure deliberate and reckless false pretence are taken into account. PART II - ESTABLISHMENT, COMPOSITION AND FUNCTIONS OF THE GAMBIA ANTI-CORRUPTION COMMISSION Review the number of Commission members from five to three to reduce costs. (3) The Commission shall consist of a Chairperson and two other members. Review the nomination procedure for the members of the Commission to ensure the selection of the best candidates, with integrity, competence and impartiality. (4) The members of the Commission shall be selected from among persons of proven integrity by a vetting committee following a public call for candidatures. The members shall be appointed by the President subject to approval by Parliament. 1

2 (5) The vetting committee will be composed by the following individuals: - A representative of the Bar Association; - A representative of the Public Service Commission; - A representative of the Judicial Service Commission; - A representative of the Chambers of Commerce; - A representative of Civil Society. Allow for the three members of the Commission to serve on a full-time basis, to avoid conflicts of interest. (7) The Chairperson and other members of the Commission shall serve on a fulltime basis and shall hold no other office in the private or public sector. Review the removal procedure to avoid discretionary interference by the executive into the Commission s workings. (8) A member of the Commission may only be removed on recommendation of the vetting committee from office by the President for: (a) inability to discharge the functions of his or her office arising from infirmity of mind or body; (b) serious misconduct; (c) violation of the Constitution; (d) serious violation of any other law; or (e) bankruptcy. Open up the fields of expertise for candidates to be qualified as members of the Commission. New language to be added: (vi) from any other relevant field of human endeavor; Avoid political party leadership involvement for members of the Commission, not only on appointment but also during the exercise of their functions. replace to be appointed by to be a member, so it reads: (2) A person shall not be qualified to be a member of the Commission if he or she- (a) is a member of the governing body of a political party; (b) is an undischarged bankrupt; or (c) has been convicted of a criminal offence Among the functions of the Commission, take out to develop a code of ethics for public officials, given that such a code already exists. Among the functions of the Commission, add to prosecute acts of corruption instead of recommending for prosecution to the DPP acts of corruption. Given that the DPP serves under the Attorney General, a political appointee, the Commission ought to have the possibility to prosecute cases directly to ensure its independence. Given the empirical evidence from several 2

3 countries in the region, such as Sierra Leone, Nigeria and Liberia, this is a critical factor in the independence and effectiveness of the Commission. The Commission shall (c) investigate and prosecute any acts of corruption or other matters proscribed under this Act; PART III STAFF OF THE COMMISSION The Executive Secretary ought to be appointed by the Commission, rather than the President of the Republic, to ensure the Commission s independent functioning. (2) The Executive Secretary shall be appointed by the Commission. Appointment of the officers under this Commission. Add or any other regulation under this Act, in the following part: (2) An officer appointed under subsection (1) shall have such powers as may be vested in him or her under this Act or any other regulation under this Act PART IV FINANCIAL PROVISIONS Ensure the financial independence of the Commission by guaranteeing a minimum budget for the Commission, as well as sources of income based on its achievements. (2) There shall be paid and credited to the funds established pursuant to sub-section (1) of this section- (a) such moneys as may be appropriated to it by the National Assembly which should not be less than 0,5% of the national budget; (b) grants and donations, provided that the terms and conditions attached to the grants and donations are not inconsistent with its functions; and (c) 10% of the recovered assets through legal proceedings initiated by the Commission. On budget submission, replace The President by The National Assembly. (1) The Commission shall not later than three months before the end of each financial year, prepare and submit to the National Assembly for approval, estimates of the income and expenditure of the Commission for the ensuing year. Ensure the publication and adequate discussion of the Annual reports of the Commission. (1) The Commission shall, not later than three months after the end of any year, submit to the President a report of its activities in that year and publish it by all available means to make it known to the public. (2) The Commission shall submit the report under sub-section (1) to be presented and defended before the National Assembly in plenary. 3

4 The annual reports ought to include as much relevant information as possible. Add in the list of topics to be included in the annual reports: any other relevant information on the activities of the Commission. PART V OFFENCES AND PENALTIES Add the following offences, listed in the UN Convention against Corruption: Trading in influence, Bribery of foreign public officials, Embezzlement, misappropriation or other diversion of property by a public official, Abuse of functions, Bribery in the private sector, Embezzlement of property in the private sector and illicit enrichment. Replace the wording corruptly by intentionally in the offences. Clarify that all sanctions in the Act should be considered as not exceeding a specific number of years. Remove section 22 (c). Remove fraudulent acquisition of property and replace it by conflict of interest. New language: 23. Conflict of interest (1) Where a public body in which a public officer is a member, director, employee or is otherwise engaged proposes to deal with any company, partnership, or other undertaking in which that public officer has a direct or indirect, private or personal interest, that public officer shall forthwith disclose, in writing to that public body, the nature of such interest. (2) Where a public officer or a relative or associate of such public officer has a personal interest in a decision to be taken by a public body, that public officer shall not vote or take part in any proceedings or process of that public body relating to such decision. (3) A public officer who contravenes subsection (1) or (2) commits an offence and shall on conviction be liable to the confiscation of his or her private or personal interest, a fine of up to one hundred thousand dalasis and/or imprisonment of up to 5 years. Remove section 35 on the delegation of Attorney General s power to prosecute to ensure adequate independence of the Commission. 35. Prosecution of offences The Commission shall have the power to undertake prosecution of offences under this Act and related offences. 4

5 PART VI - INVESTIGATION, SEARCH, SEIZURE AND ARREST Remove the obligation to sign or thumb-print reports made to the Commission and allow for anonymous complaints to be assessed and investigated if deemed appropriate. Remove section 43 on the detention of person refusing to acknowledge service Add a section on special investigative techniques. Power to use special investigative techniques The Commission shall have the power to use special investigative techniques, as specified in the UN Convention against Corruption, such as the interception of communication, subject to court review. PART VII PROVISIONS RELATING TO INVESTIGATIONS Consider including a provision to allow the Commission to use plea-bargaining to pursue its investigations. PART VIII - EVIDENCE No comments PART IX PROSECUTION AND TRIAL OF OFFENCES No comments PART X - MISCELLANEOUS Consider extending the length of prescription for the offences listed in this Act. OVERALL Render the Bill gender friendly by using he or she, him or her, chairperson, etc, instead of he, him, chairman, etc. Adjust the table of contents in accordance with the above-mentioned revisions and doublecheck the numbering of sections, as well as cross-references to sections within the Act. Done on 9 August 2017, in Banjul 5