I.P.O Law – Corruption

A mission of the I.P.O legislation is to stamp out corruption within our public service. It sets out to accomplish this by making bribery, especially of high-ranking public officers, and related activities, criminal offences punishable by comparatively heavy penalties. Those targeted include "prescribed" officers and persons "in public life", as well as anyone having unethical dealings with such persons. There are four categories of "prescribed officer", namely, police officers, public officers, employees of a public body and members of such a body. There are five classes of public bodies: (a) the Government; (b) a Ministry or Department of Government; (c) the House of Assembly; (d) a public corporation or a subsidiary company; and (e) a State-appointed board, authority, commission, committee or the like.

Bribery of one kind or other is committed where an "advantage" is solicited, that is to say, asked for or where an advantage is offered or accepted. An "advantage", simply put, means something of benefit or gain to a person directly soliciting, offering or accepting it, or to someone else on whose behalf the benefit or gain is solicited, offered or accepted. The Act identifies six categories of advantages. Included among them are (a) gifts, loans, fees and rewards, or commissions in money or money's worth; (b) a job or contract; (c) payment in part or in whole of a loan or such other obligation; (d) a favour, including protection from any penalty or court proceedings; (e) wilfully not exercising any right, power or duty; and (f) a promise, offer or undertaking, whether it be conditional or without any condition whatsoever.

Some Offences

Thus, prominent wholesaler, Mr. Biggy, commits an offence where, "without lawful authority or reasonable excuse", he offers Police Officer A, $5,000.00, beforehand, to induce the policeman to not carry out a search of his merchandize warehouse for goods that did not pass through customs. It matters not that Officer A refused to entertain Mr. Biggy's offer. Once the offer is made, the offence is committed. Now, assume that no offer was made beforehand but that Officer A, out of fear, real or imagined, that persons on high would not take kindly to any search of Mr. Biggy's warehouse, had not carried out the search. And suppose that Mr. Biggy, relieved that he had not been made to face the courts, had, then, offered Officer A $5,000.00. In that case, the wholesaler would still have committed the offence, whether or not his offer was accepted.

As to Police Officer A, himself, he would have committed an offence under the Act if he had solicited money from Mr. Biggy beforehand in return for him to conveniently forget to search the wholesaler's warehouse. It matters not that, instead of paying attention to the Officer's solicitation and making him an offer, Mr. Biggy had threatened to put the matter before the Officer's superiors. Officer A would be guilty of soliciting a bribe. Now, suppose that the businessman, rather than threaten the policeman, had passed money to the Officer, and the Officer had accepted the $5,000.00 as a reward for turning a blind eyes to his duties. In that case, Officer A would have committed the offence of accepting a bribe.

The offences of soliciting a bribe, offering a bribe and accepting a bribe may be committed by prescribed officers and their counterparts in a variety of situations where the facts are different from those of the case concerning Mr. Biggy and Officer A. Take, for example, the situation in which the bribe is intended to cause a prescribed officer to expedite, delay, hinder or prevent the performance of an act which he or she, as a prescribed offer, ought properly to carry out. Or, consider the case where the bribe seeks to have the prescribed officer assist or favour any person in the transaction of any business with a public body, or to hinder or delay that person's conduct of business there. In both situations, as in the case of Mr. Biggy, a person may be held to have offered a bribe to a prescribed officer. And, in the same vein, a prescribed officer may equally be held to have solicited or accepted a bribe from that or any other person.

A prescribed officer may also commit the offences of soliciting or accepting a bribe where that officer passes classified or confidential information to another person. For the prosecution to succeed, it must be proven beyond reasonable doubt that (1) the accused prescribed officer did pass the information; (2) the accused did not have lawful authority or reasonable cause to do so; (3) the information was passed by the accused in the performance of his or her functions as a prescribed officer; and (4) the intention of the accused in passing the information was to obtain an advantage from the person receiving the information.

It is a further offence under the Act where any person offers an advantage to a person in public life, for giving assistance to that person in respect of a contract from a public body. The subject-matter of such contract includes the performance of any work, the provision of services or the supply of articles, materials and substances. And, assistance by the person in public life includes influencing the "promotion, execution or procuring" of that contract. It is also an offence where these things are done in respect of a sub-contract from a public body.

Relatedly, an offence is committed where any person "without lawful authority or reasonable excuse" offers an advantage to a prescribed officer employed by a public body, while that person is having "dealings of any kind" with that public body.

The fact common to all these offences is that an advantage is offered to a prescribed officer beforehand, to induce him or her to influence a decision as to who is to obtain the contract or sub-contract. Or, the advantage is given after the decision has been made, as a reward for the officer's assistance and influence. Without this, no offence has been committed under the Act. Quite obviously, a prescribed officer who assists someone in obtaining a contract or sub-contract from a public body may, based on the facts, be held liable for soliciting or accepting a bribe. It should be no surprise, then, that this is yet another crime under the Integrity legislation.

Specifically as to persons in "public life", as distinct from prescribed officers and their counterparts, it is an offence for any of them to solicit or accept any advantages in return for assisting persons in obtaining contracts or sub-contracts from public bodies. It is a defence that the person accused had reasonable cause or lawful authority to act as he or she did. Where, however, someone gives or accepts an advantage, believing or suspecting that it is given as an inducement to act improperly, or as a reward for having acted improperly, that someone is disallowed by the Act to rely on the following, as defences: (1) he or she did not actually have the power, right or opportunity to act or not act as he or she did; (2) the advantage was accepted without any intention to act or not act in the manner proposed; (3) and, he or she did not, in fact, act in the manner proposed.

Further, as to the abovementioned offences, three more points need to be made. One is that it is an offence to aid, abet or to facilitate another person in the commission of these crimes. Another is the latitude provided to the courts to institute alternative convictions. What this means is that if it is not proved that the accused is guilty of the offence charged, but he or she is proved to be guilty of another offence under the Act, the accused may be convicted of that other offence. The third point is that in proceedings relating to obtaining a contract from a public body, there is a presumption of corruption. That is to say, where it is proved that a person has received an advantage, it is presumed that that advantage was made, given or received corruptly, as an inducement or reward. The burden is then placed on the accused to show, on a balance of probabilities, that this was not so.

Penalties

A person found guilty of having committed any of the offences referred to above is liable as follows. On summary conviction, that is, in a Magistrate's Court, a fine of $5,000.00 or two (2) years imprisonment, or both such fine and imprisonment. On conviction on indictment, that is, in the High Court, a fine of $25,000.00 or ten (10) years imprisonment or both such fine and imprisonment.

Further, the Act provides for the confiscation of property held by accused persons. It stipulates that where a person is convicted of an offence related to bribery, corruption or unaccounted property, the Court has authority to make an order for the forfeiture of "any property in possession or control" of that person. But, to make such an Order, the Court must have "reasonable grounds" to believe that that property was "illicitly obtained in, or as a result of the commission of the offence". Simply put, it must be reasonably believed that the property was obtained by illegitimate, that is to say, dishonest means.

(Dr. William E. Riviere is an Attorney-at-Law)

Copyright © William Para Riviere, July 2014.