Robert Wynter, Contributor

Wynter

Corruption may be defined as the 'use of public office for private gain'. Corruption is on the dark side of the road while we search the well-lit, anti-corruption legislation side, and wonder to ourselves why corruption continues unabatedly.

Anyone using a public office contrary to the best interest of his/her respective constituents is using that public office for private gain and is deemed to have behaved corruptly.

Let us examine the term 'office' or 'position' as some would prefer. By using one's office or one's position, what is really meant is the authority, or power, of that office or position. This power is vested in the office to be used in the best interest of the respective public constituents. Corruption, therefore, occurs when this power, rather than being used for the benefit of the entire constituents (public gain), is used for the benefit of special groups and individuals within the respective constituents, including oneself (private gain). Corruption is, therefore, the abuse of power. Lord Achton's dictum states that "power tends to corrupt, and absolute power corrupts absolutely."

Private Gain

Is corruption legal? Does someone in public office break the laws of the land or breaches the rules of an organisation when he/she exercises power for private gain? If someone is granted the freedom to exercise power as he/she sees fit, that person can, within the ambit of the laws of the land and/or the rules and regulations of an organisation, use that power for private gain. Corruption as defined above is, therefore legal, however, it is immoral and ought not to be confused with breaking the law or breaching rules and regulations.

Waive Import Duties

Were I the Minister of Finance and decided to waive import duties on my brother's car or on my mother's car, I would be totally within the law as the Minister of Finance has full authority to do so. However, because I would have been given that authority to use in the best interest of the people of Jamaica (public gain) but used it in the best interest of my brother or my mother (private gain), then I would have acted corruptly. No anti-corruption legislation would curb my corrupt activities.

Let us examine the recent issue with the ruling party, the Government, the Opposition and Trafigura. What was originally claimed to be a donation to the ruling party have been interpreted as an intention to influence the Government's authority to renew a seemingly lucrative contract to lift Nigerian oil.

On the one hand, it seems to me that the ruling party broke no Jamaican law in accepting a donation (assuming it was a donation). Whether Trafigura broke the laws of the Netherlands or breached the regulations of the Organisation of Economic Corporation and Development is another matter. However, because certain officers, belonging to both the ruling party and the Government, have the authority to decide who is given the contract to lift the oil, then those officers can exercise that authority in the best interest of Trafigura and/or in the best interest of the officers and/or in the best interest of the people of Jamaica.

Accepting The Donation

The donation may, therefore, be seen as an attempt to influence that authority in the best interest of Trafigura (private gain). By accepting the donation, the ruling party did nothing illegal; however, in my mind something immoral was done. Their integrity was compromised by creating the doubt that their exercise of authority can be influenced. If the officers did something illegal, then they would be answerable to, and can be dealt with by, the justice system. If they did something immoral, however, they are answerable to the people of Jamaica and must account for their actions. Their accountability has been manifested in the resignation of the Minister of Information and Development.

On the other hand, if the Leader of the Opposition received information from a bank official (this has not been ascertained at time of writing) then both the bank official

and the Leader of the Opposition did something illegal. Because there was no abuse of power, they did not act corruptly. However, because they acted illegally they should be dealt with by the justice system.

The examples above, and there are many more, establish that corruption is in fact legal and that is where the problem lies. When public officers break laws or breach rules, there are sanctions within those laws and rules to curtail and correct such actions. However, when public officers act within the laws or rules but abuse the power vested in them, there are no sanctions to curtail or correct their actions. The Auditor General, Contractor General, Director of Public Prosecution and Internal Auditors are not capable of identifying, much less proving corruption. This is exactly why anti-corruption legislation is an exercise in

futility. If the problem is one of abuse of power, then the solution cannot be a legislative one, rather it must be the curtailment or the balancing of power.

The Office of the Cabinet Secretary's document on Public Sector Reform is therefore spot on when it defines Good Governance as the allocation, distribution and exercise of power over the affairs of the nation. The document lists several goals, objectives and activities required to achieve Good Governance, however, disappointedly none speaks to re-allocation, re-distribution or to the proper exercise of power.

How well are we fighting the battle on corruption? I say not very well. We are barking up the wrong tree by trying to address an abuse of power problem with anti-corruption legislation solution. Rather we must reallocate and redistribute power using the 'check and balance' strategy and strengthen it with transparency strategies.

In the case of granting waivers, such on import duties for motor vehicles, it should be required that all such waivers be tabled in Parliament and gazetted monthly with explanations provided by the Minister, who should then be required to account for and defend all waivers given.

In the case of setting a date for General Elections there are two possible solutions that are fair to all candidates and to the public. Either there is an established fixed date once every five years, or that the power to set the date is vested in the Electoral Advisory Committee (EAC) or soon to be established Electoral Commission (EC). For transparency purposes, this date ought not to be announced 15 days prior, but at least six months before.

One of the major contributors to the improvements in the operation of the General Elections has been the shift in power in the EAC from the political parties to the independent members. This power shift has seen the composition moving from a 3:4 ratio of independents to party representatives to the current ratio of 3:2.

The abuse of power must be distinguished from actions, which break laws or breaches established rules and regulations. The solution to abuse of power is to reduce the power given to public officials and to put in place checks and balances and transparency in the exercise of that power.

Copyright 2006. Robert C. Wynter is a partner in the firm Growth Facilitators. Email: robwyn@cwjamaica.com