This is the second attempt which the Government will make to pass a piece of legislation dealing with corruption through the two Houses of the Barbados Parliament. One would not that the last attempt failed at the level of the Senate. The objectives of the Bill are to prevent, investigate and prosecute acts of corruption. The Bill also claims that any act done by a person outside Barbados which would be an offence if done within Barbados, is an offence for the purpose of the Bill. The Bill will also give the United Nations Convention on Corruption the force of law in Barbados.
WHAT IS A BRIBE?
The Bill seeks to prevent the bribery of individuals holding positions of influence in Barbados. Bribes include:
1. money and any gift, loan, fee, reward, bonus, commission, discount, rebate, valuable security or other property or interest in property of any description;
2. any status, honour, office, contract, employment or agreement to render services in any capacity;
3. any entry to an academic institution or course and any grant, scholarship, favourable academic results or other service, favour, right or privilege related to education;
4. any forbearance to demand any money or money’s worth or other valuable thing;
5. any avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage or any protection from any disability or penalty apprehended or incurred from any action or proceedings of a civil, criminal or disciplinary nature, whether or not already instituted;
6. any discharge, liquidation, payment or release of any loan, obligation or other liability, whether in whole or in part;
7. any residential or hotel accommodation;
8. any exercise, or forbearance from the exercise, of any duty, power or right; any aid, vote, consent, influence or abstention from voting, whether actually or purportedly given or undertaken; 9. any other service, favour, right or privilege; and any offer, promise or undertaking, whether conditional or not.
One should note that this is not an exhaustive list.
Investigations
The police officer or other investigating officer is charged with the investigation of the possible offences under the Bill. They are given certain powers to construct and serve on those who are suspects disclosure orders to provide certain information. The information must not be unreasonably refused.
An investigative officer may apply to a Judge in chambers for a warrant to search premises and take information except for information which is considered privileged, such as attorney-client information. The information must be of substantial value or it must be in the public interest.
Unexplained Property
The tribunal is expressly given a mandate to take into account property which the accused or a related party holds which he can not explain.
Presumption
In cases where the accusation is one of bribing a public official (clause 4) or where there are tenders or contracts (clause 8) there is a rebuttable presumption that when an advantage is given or received it is meant to be an inducement.
Eliminating Certain Defences
It is not a defence that the corrupt act could not have taken place because (i) any of the parties involved did not have the power to deliver on the promise; (ii) it is customary in any profession, trade, vocation or calling.
CATEGORIES OF INDIVIDUAL TARGETTED
The legislation seeks to ensure that the following individuals are not the subjects of bribes:
1. public officers;
2. members, chief executive officers, managers, directors and employees of state-owned enterprises;
3. any other person who holds a legislative, executive, administrative or judicial office in the Government of Barbados, whether appointed or elected, permanent or temporary, paid or unpaid;
4. foreign public officials
5. officials of public international organisations
6. a person who directs or works in a private sector entity.
THE PENALTIES
1. A person who knowingly provides false information or makes a false allegation may be imprisoned for 3-5 years or may be fined between $50,000.00 or $150,000.00 depending on the severity of the allegation, or both.
2. Tipping off that an investigation will commence comes at a penalty of $250, 000.00 or 10 years imprisonment or both.
3. A person who fails to comply with a disclosure order to provide information or makes a false statement in connection with it is liable to a fine of $50,000.00 or 3 months imprisonment or both.
4. A person found guilty of an offence under the Bill would be disqualified from holding public office for ten years after the conviction.5. A person found guilty of bribery or trading in influence may be fined for a serious offence $1 500 000 or to imprisonment for 15 years or to both; and for a lesser offence, $500 000 or to imprisonment for 10 years or to both.
WHAT SEEMS TO BE MISSING
There is a provision in the Bill which allows the Minister to make regulations, however the question which immediately comes to mind is how would this legislation take effect if it were passed tomorrow. If Citizen K overhears a conversation so that it is within her knowledge that Individual Y was granted a contract on the basis that a percentage of the proceeds should go to Minister X’s charity, how does she proceed?
There is no clear anti-corruption mechanism in this Bill. There is no protection for the whistleblower, there is no special unit in the police force and there is no specific tribunal to hear these matters. Is this to be a part of the general justice system? If so, what chance is there of success? Or is there much more to come?
Eastmond & Co. 