I.P.O Law – Declaring Income & Assets
The Integrity in Public Office (I.P.O) Act is one of the most significant pieces of legislation to have appeared on the statute books of our country. Such a statute was recommended by the Matthew Constitutional Review Commission in 1983 and by the Georges Commission in 1999. The Act was passed in 2003 and, following public pressure, was put into effect five years later.
The legislation targets two categories of "persons in public life". The first includes Ministers of Government and their Advisors or Assistants; Members of Parliament; Parliamentary Secretaries; the Speaker of the House; Permanent Secretaries, including the Cabinet Secretary, Financial Secretary, Chief Personnel Officer, Director General of Finance and the Manager of the International Business Unit; the Chief Technical Officer, including the Chief Physical Planner and Directors, Heads or Deputy Heads of a Government Ministry or Department; the Chief and Deputy Chief Fire Officer; the Superintendent and Assistant Superintendent of Prisons; and the Chairman, General Manager and Directors of a public institution. A Public institution is defined to include a State-owned bank, company or corporation or one in which the State has a controlling interest. A corporation set up by legislation for "public purposes" is also treated as a public institution.
The other category of persons in public life targeted by the Act comprises anyone who has been acting continuously for not less than six months in the following posts: Permanent Secretary; Chief Technical Officer; Chief and Deputy Chief Fire Officer; Superintendent and Deputy Superintendent of Prisons; and Gazzetted Police Officers.
The legislation is intended to cast out three main demons from the bodies of those among the above-mentioned officials thought to be haunted. The demons are: one, possession of income and assets acquired by illegitimate means; two, engagement in "bribery and other acts of corruption"; and, three, breach of a Code of Conduct. An Integrity Commission is charged with the task of identifying these demons. And the Office of the Director of Public Prosecutions (D.P.P.) is given sole responsibility for casting them out.
Declaring Income and Assets
Targeted persons are required by the Act to declare their income, assets and liabilities to the Integrity Commission every income year, that is to say, calendar year. The declaration must be filed within three (3) months after the end of that income year. Even where a person ceases to be in "in public life" during the calendar year in which the declaration is to be made, or in the following two calendar years, he or she is required to file a declaration. Further, where someone became a person in public life after the date on which the Act took effect in 2008 was required to file a declaration within three (3) months of that day. But, where the reason for ceasing to be in public life is that he or she has died, a declaration need not be filed.
A declaration must provide information as to the person's office or offices; his or her income, assets and liabilities; the assets of the person's spouse, children or relatives that arose from his or her income; and gifts of more than $1,000.00 made by the person making the declaration. Also to be declared are money or other property which the person in public life holds in trust for someone else; income, assets and liabilities acquired for him or her by an agent. It is to be noted that a declaration is secret and confidential. Hence, it is not to be made public except where it is required to be produced, such as in connection with court proceedings or for purposes of further inquiry.
The Integrity Commission is empowered to determine whether a declaration has been fully made. In the process of doing so it may seek additional information or explanation from the person making the declaration. It may also call on that person to provide further particulars concerning his or her financial affairs. Further, where the Commission considers it "necessary or expedient" to have a more thorough investigation made of the contents of the declaration, it may request that a Tribunal be appointed to conduct such an inquiry.
On the advice of the Integrity Commission, a Tribunal is appointed by the nation's President. Three members of the Commission are to constitute a Tribunal. Proceedings are to be held in private. And the Tribunal has authority to request that the declarant either attends the hearing and give information, or submits such information or documents in writing. More than this, the Tribunal may request the same thing from "any other person" whom it "reasonably believes has knowledge of the matter to be inquired into".
As to the outcome of Tribunal proceedings. Where the person before the Tribunal is found to be at fault, the Commission must refer the matter to the Director of Public Prosecutions "for further action". Where, however, the person before the Tribunal "had in fact made full disclosure" in his or her declaration, the Tribunal is obliged, if that person so requests, to publish a statement to that effect in the Gazette as well as in a newspaper. Most importantly, a Tribunal is prohibited from conducting any inquiry into a declaration after the passage of five years from the date when the person making the declaration ceased to be "a person in public life".
Offences & Penalties
There are a number of offences in respect of failure to comply with the provisions of the Act regarding a person's declaration of income and assets. One is where a person fails "without reasonable cause" to file a declaration or further particulars. Another is where he or she "knowingly" declares something that is false. A third is where "without reasonable cause" a person fails to provide information requested by a Tribunal inquiring into whether or not a declaration is "full and proper". Yet another offence is committed where a person "without reasonable cause" fails to attend such an inquiry or, having attended, gives false information.
Further, it is an offence for a member of the Integrity Commission or an employee or a person "performing any function in the service of the Commission" to (a) "disclose or communicate" to an "unauthorized person" any such declaration or any information contained therein; or (2) allow any unauthorized person to "have access" to any such declaration or information. An "unauthorized person" is someone not authorized by the Act to receive information concerning the financial affairs of persons in public life or not ordered by a Judge of the Supreme Court to do so. An offender is liable upon summary conviction in a Magistrate's Court to a fine of $10,000.00 or one year imprisonment or to both such fine and imprisonment.
An "unauthorized person" who publishes a declaration or information passed on by a member, employee or functionary of the Commission also commits an offence. The penalty on conviction in a Magistrate's Court is $10,000.00 or one year imprisonment or both such fine and imprisonment.
The Act also takes account of persons in public life, or persons acting on their behalf, suspected of having property or money acquired by illegitimate means. Where a person is held under such suspicion, the Commission must conduct an inquiry into that person's sources of income. A report of the inquiry is then submitted to both the D.P.P. and to the President. And where the D.P.P. upon examination of the report is persuaded that property and money have been obtained by illegitimate means, he or she is obligated to undertake criminal proceedings against the defaulting person in public life. A person found guilty of this offence in a Magistrate's Court is liable to a fine of $2,000.00 and imprisonment for a term of two (2) years and, further, to confiscation of the illegitimately acquired property and money.
The legislation also takes account of the likelihood of overzealous citizens making false allegations or providing false information against persons in public life as to the alleged possession by them of unaccounted property. It places the burden of proof on those making such allegations and providing such information. And it imposes severe penalties on those found guilty. In a Magistrate's Court, the penalty is a fine of $15,000.00 or imprisonment for three (3) years; on indictment in the High Court, the penalty is $30,000.00 or imprisonment for a term of five (5) years or to both such fine and imprisonment.
Copyright © William Para Riviere, July 2014.
(Dr. William E. Riviere is an Attorney-at-Law)