It is early still in the term of the Davis administration but indications thus far are that the lack of transparency surrounding financial disclosures of public officials and a culture of noncompliance is continuing.
The Public Disclosure Act, a legal anti-corruption mechanism, mandates that every senator and member of Parliament provide to the Public Disclosure Commission a declaration of assets, income and liabilities up to December 31 by March 1.
The act at section 15 also empowers the commission to extend the time for the filing of declarations “for a further period not exceeding 30 days”.
Public Disclosure Commission (PDC) Chairman Bishop Victor Cooper told National Review on Monday that extensions were granted in some cases as some new members were “not aware” of the legal requirement.
The extensions have gone beyond the 30-day extension period provided for in the act.
“Like I indicated, there are persons who are new members of Parliament who aren’t aware, and so as a result of that, some persons are just finding out, and so they’ve been advised that they need to get their information in and they’ve been advised to do that ASAP,” Cooper said.
When we pointed out to him the act provides for a 30-day extension, Cooper said, “It’s just a matter of helping those, giving a simple grace period for those who haven’t been through the process before.”
We reminded the bishop — who said he was appointed only in January — that ignorance is no excuse for violating the law.
He said, “I suspect that this has happened for some time, but having just come in, we’ve asked them to do that ASAP.”
Under Section 5 of the act, a declaration is to include a reporting on the assets, income and liabilities of the declarant, his spouse and his children.
But when it comes to meeting the legal requirements under the Public Disclosure Act, our political leaders have over many years shown a complete disregard.
There is a selective adherence to which laws they will follow and which ones they will ignore.
We highlighted this point last week when we examined the fact that the Davis administration is in violation of the Public Procurement Act, which came into effect on September 1, 2021.
The Public Disclosure Act is important in the fight against corruption.
The act provides for the Public Disclosure Commission to examine every declaration furnished to it by MPs, senators and senior public officials and public appointees.
It also requires that the commission gazette reports so members of the public are able to see who declared and who did not.
Over many years, the Public Disclosure Commission has failed to meet this legal requirement to publish reports.
The most recently gazetted report is from December 2011, and it contained information on disclosures only up to 2008. That’s 14 years outstanding.
“You’re talking about leaders of the country, elected and appointed, who have got a responsibility legally to declare and yet they haven’t,” said Myles LaRoda, who served as PDC chairman from 2015 to 2021.
“… I don’t feel like I’m wasting my time, but I would like to know that the work that we have done is gazetted in a more expeditions manner.”
That statement by LaRoda was made in 2017. He resigned last year ahead of accepting a nomination from the Progressive Liberal Party for Pinewood.
After LaRoda’s resignation, the Cabinet Office announced that George Carey was appointed chairman.
We reached out to Carey this week to ask what, if anything, he was able to achieve during his months-long chairmanship, but he had no comment.
LaRoda confirmed to The Nassau Guardian on Monday that as an MP, he has followed the law and filed his disclosures in time.
Opposition Leader Michael Pintard confirmed that he met the deadline and said he thinks all members of the opposition have as well, though he could not be sure.
On Monday, Cooper could not speak to how many public officials have met the deadline to file.
But Prime Minister Philip Davis’ office confirmed yesterday that he filed his disclosures on time.
Lack of independence
As the enforcement of laws go, the Public Disclosure Act is high on the list of those not being enforced. While some public officials have over the years filed their disclosures on time, the public has not benefited from the transparency the law seeks to ensure.
The act provides for a $10,000 fine or imprisonment of a term not exceeding two years, or both, for anyone who violates the law.
In the case where the offense involves the deliberate non-disclosure of property, in addition to a fine or term of imprisonment or both, the property located inside The Bahamas will be forfeited to the government, or the value of the property, if situated outside The Bahamas, will be paid by the offender.
There is no doubt that the current act, passed in 1976, is outdated. There is need for modernized legislation to strengthen the powers of the commission, which lacks adequate resources to effectively carry out its work.
LaRoda said after he resigned last year, that while he served, the commission functioned as a department of the Cabinet Office.
“We have never, ever, not while I was there published anything,” he said.
“We didn’t have a budget. Our budget for whatever we got came out of whatever was allocated to us. … We don’t have an account and we don’t write checks. Everything that is done [is done through the] Cabinet Office.”
In 2015, an Organization of American States (OAS) report noted that the commission lacked technological tools to carry out its functions.
At that time, the commission was using the following machines in the execution of its functions: one adding machine, two word processors and a fax machine.
The commission does not have an electronic system for receiving declarations and accordingly, there is no electronic database in use. Data is stored in the filing system, the report noted.
The OAS’ MESICIC (The Mechanism for Follow-up on the Implementation of the Inter-American Convention Against Corruption) report, dated March 20, 2015, said, “Given that the commission does the important work of receiving and reviewing declarations of parliamentarians, including that of the prime minister, it is essential that it has independence to carry out its functions in reviewing the declarations submitted by members of the Cabinet and the prime minister”.
The report observed the relatively low level of compliance by those subject to the act to file their declarations on or before the legislatively mandated time frame.
In this respect, the committee conducting the review noted that one of the difficulties mentioned during its on-site visit was the delay in obtaining declarations from members of Parliament, senators, senior public officers and public appointees.
The report recommended that The Bahamas consider publicizing the names of the officials who have not submitted their declarations as required under the Public Disclosure Act, in addition to the report sent to the prime minister and leader of the opposition on disclosures made.
“As there is a difficulty in obtaining these declarations, publicizing names may prove useful in encouraging compliance of those that are in default,” the report said.
It recommended empowering the commission to report directly to the attorney general or the police when it comes across alleged acts of corruption committed by those subject to the act.
The report made a long list of recommendations, including making the commission independent.
It also recommended publicizing the summarized declarations online so as to assure greater access to them by the public.
Reform and modernization have long been promised, but not delivered.
Promised reforms
When he spoke at an anti-corruption conference in the Cayman Islands in March 2014, then-Prime Minister Perry Christie acknowledged a flagrant disregard by officials for the Public Disclosure Act.
Outlining anti-corruption legislation in The Bahamas, Christie pointed to “legislation providing for the disclosure of the financial affairs of members of Parliament and senior public officials which admittedly, however, has not proven to be a model of scrupulous observance”.
Nevertheless, he said, the Public Disclosure Act is a part of a package of legislative provisions and mechanisms “used and pressed into service in some way or another as part of the national fight against corruption in The Bahamas”.
Some former MPs have previously admitted in the media that they have violated the law by failing to disclose.
In February 2011, Hubert Ingraham, at the time prime minister, said, “The last one I did was the day before the election in 2007.”
That means that he had not disclosed up to that point in four years.
Ingraham acknowledged at the time, “the Public Disclosures Act is not being adhered to by members of Parliament”.
At that time, the last disclosures published were done on November 3, 2004 and had information up to 2000.
Ingraham said he was in no position to tell other public officials to disclose their financial information in light of his own violation.
In its 2013 report, the Constitutional Commission noted, “There can be no denying that there is a need for a body which would have the ability to ensure that ministers, parliamentarians and other senior officials are accountable and exercise probity in their affairs.
“In recent times, however, under successive governments, the Public Disclosure Commission has become essentially dead letter.”
The 1976 act has not been amended since being enacted.
In October 2017, just a few months after coming to office, the Minnis administration introduced the Integrity Commission Bill, which would have repealed the antiquated Public Disclosure Act.
The bill comprehensively detailed acts of corruption, including the behavior of public officials with respect to the award of contracts and soliciting or accepting any personal benefit or providing an advantage for another person by doing an act or omitting to do an act in the performance of his or her functions as a public official.
The bill remained shelved throughout the Minnis administration’s four-and-a-half year term.
On Monday, Pintard, who was a minister in that administration, expressed regret that the bill was never passed.
“We had a number of important pieces of legislation that were completed and were not debated,” he said.
“In fact, I said on my feet in the House of Assembly that we have a number of notable missed opportunities and that was made worse by the fact that the election was called prematurely and I have been quite outspoken about my disappointment with respect to that decision.”
Like its predecessors in office, the Davis administration has promised updated legislation relating to public disclosures and other anti-corruption and electoral reform bills.
It says in its “Our Blueprint for Change”: “We commit to fully implementing the Freedom of Information Act, an Integrity Commission Act, Ombudsman Bill, new Public Disclosure Act, Anti-Corruption Act, Campaign Finance Reform, Code of Conduct, Whistleblower Act, Electoral Reform Act, and Procurement Act.”
To date, its legislative agenda has been far from robust.
As with other administrations, the Davis administration has had to prioritize matters – the priority items in the last nine months being pandemic response, the economy, public finances and trying to figure out how to respond to growing inflationary pressures.
We do not yet see any signs that it is serious about effecting the kinds of legislative reforms it has pledged in its pre-election document.
The later it gets in its term, the more likely it will not want to take up such controversial matters. The Davis administration holds an overwhelming majority in Parliament. If it wants those measures passed, they will pass.
With a public that does not demand that its government adhere to the law, we do not expect to see anytime soon, if ever, full compliance with the Public Disclosure Act, or even the Public Procurement Act.
Our political leaders continue to view adherence to these laws more as an option than an obligation.
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