Editorial

Last week’s front-page story in this newspaper may have raised some reader eyebrows; the CIABOC (Commission to Investigate Allegations of Bribery or Corruption), it said, is mulling over a proposal by some of those arraigned, or to be arraigned before it on charges of bribery or corruption, that they simply pay back the pocketed loot and carry on.

That provision already exists under many laws. The fact that this proposal has suddenly emerged before the CIABOC only after an earlier news report that a sitting Cabinet Minister who has the No. 45 slot in a pending CIABOC inquiry list was due to meet the investigators brings one to an irresistible conclusion: that there could have been a nexus with the proposal. The argument is that the state does not benefit financially when it only provides for an indictment, a prosecution and judgment and, in case of a conviction, a fine and/or a jail term.

This ‘pay and commute’ system exists not only in traffic fines but is also available in the Establishment Code that governs the conduct of public servants. Under its FR (Financial Regulations), there is provision for a public servant to reimburse amounts spent over limits provided. In fraud cases between parties, the courts also permit settlements with the consent of the complainant.

These are, however, different in nature from those that come before the CIABOC. Apart from the run-of-the-mill cases involving bribery by school principals and police officers, they relate to—or ought to relate to—the mega multimillions involving state tenders. These offences have been committed because of the position the offenders hold as politicians and public servants, often in connivance with those in the private sector.

When the Government is on overdrive to purify the corrupt system, this proposal to pay your way through serious offences appears contradictory. The Anti-Corruption Act provides for the Director-General ‘with the sanction of the Commission’ to withdraw an indictment based on, inter alia, the national interest and the public interest. That ‘may’ be subject to certain conditions, like a public apology or providing reparation to victims or refraining from holding public office. But what happens when the victim is the state—and with whom is the discretion to decide who ‘may’ be subject to the conditions?

The recently passed Proceeds of Crime Act [S. 118 (4)] provides for a penalty to the value of the crime to be paid.

If the CIABOC is also exploring this provision, in the least, the Terms of Settlement should include not only a financial punishment in the forfeiture of the loss incurred to the state by the offender plus interest and costs and an admission of guilt through a court of law, but also—in the mega cases involving the state—a mandatory disqualification from holding public office. It cannot be discretionary and must demonstrate the severity of the crime committed against the state and its people.There must be some deterrent to major financial crimes, at least those involving the state.

The Securities and Exchange Commission makes available the settlement of an offence by the recovery of damages rather than a prosecution for a crime, arguing that legal procedures are time-consuming and proving complex financial cases is difficult. And yet, under pressure, the stock market that was dubbed ‘The Laundry’ for allowing money laundering tightened its laws recently, removing the option of compounding offences for insider trading, false statements, distorting the market, stock market manipulation, passing confidential information, etc. The CIABOC wouldn’t want a shady title like what the SEC earned and would, no doubt, be mindful of the implications when it mulls this new proposal.

Public servants under attack

Related to the proposal before the CIABOC is the prevailing open discussion by government leaders that the public service is not pulling its weight and the wheels of administration are moving slowly. That view has been aggravated by ministers blaming their own officials for incompetence and the President referring to the existence of a ‘Deep State’ that is undermining his government.

The search for a perfect balance between a complacent bureaucrat in no hurry and an elected term-limited politician seeking quick results is nothing new. But this line of attack on the public servants, who, by and large, voted for this Government, may have demoralised the service. Critics say that the Government is finding scapegoats for its own failure to deliver.

In this volatile landscape is the growing fear among public servants that the Government’s anti-corruption crusade is targeting them as well as past politicians by going beyond the Establishment Code that governs official conduct in the public service and its Financial Regulations (FRs). FRs 101 to 114, in particular, which were clear and precise guidelines that dealt with most infringements relating to tender procedures, procuring supplies, etc., and provided for administrative punishments ranging from surcharging for losses to interdictions, are now getting upgraded into criminal offences under the Public Property Act and Anti-Corruption Act with the involvement of the CID and CIABOC.

Any deviations from the FRs, even if minor or in good faith or under political duress, coming under these criminal laws constitute non-bailable offences. The Independent Public Service Commission and Independent Procurement Commissions and their Appeal Boards get bypassed once the CID comes into play.

Without targeting the ‘sharks’, these current moves, when applied sweepingly across the board, are causing shock waves and a paralysis of administrative inaction within the Public Service, which is, after all, any government’s instrument to fulfil its mandate by the people.

Excessive brakes on the bureaucracy are self-defeating when they lead to inertia and fear of decision-making. Still more disturbing is the deeper malaise expressed in some quarters that the public service is being brought to heel under a centralised political authority for the long run. Meanwhile, reams of reports and recommendations by the Auditor General and parliamentary committees COPE and COPA on financial misdemeanours in the bloated public sector seem to go nowhere with little follow-up action other than for headlines in the media. Another supra-bureaucratic body—like the DOGE (Department of Government Efficiency) in the USA that is gaining currency even across the Atlantic to see to the implementation of these findings—may be the answer, though it will be another administrative and costly nightmare bloating the public service even further.

The upshot of it all is that public servants must not be afraid to use their discretion in absolute good faith, and should they falter, be subjected only to the provisions of the Establishment Code—unless they amount to proven corrupt practices. On the one hand, there should not be one law that allows for the forfeiture of property even from a person under investigation and on the other hand, offering to compound a case from someone under investigation for corruption, especially involving the state.