How do we proceed from here to get Gambian anti-corruption rules right?

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By Michael O. Davies, anti-corruption practitioner

Over the past nine years, local and international anti-corruption practitioners in the public and political sectors, has engaged in consultations and restructuring to enable The Gambia’s transition to effective and efficient anti-corruption legislation. The policy goal of anti-corruption practitioners is that The Gambia have a legal framework that establishes a functional anti-corruption commission charged with curbing bribery and other forms of corruption in the public and political sectors. And to ensure that delays in accountability processes are avoided and the rule of law is guaranteed in the fight against corruption at all costs.

With good reason, an anti-corruption commission should have the power to prevent, detect and punish all acts of corruption under the law, but all too often in this country, with the anti-crime policies and practices that affect our daily lives, prosecutors do not diligently pursue crimes involving public officials. We are all witnessing unnecessary delays in prosecuting National Audit Office reports on frauds involving public office holders. For this reason, we at PPI continuously advocate for a truly independent anti-corruption commission at the unelected and elected public office level, write newspaper articles and hold radio talk shows so that The Gambia has an adequate legal framework to deal with public and political corruption.

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Here are just a few of the many issues we have advocated in our lobbying exercises. Identifying the challenges and providing solutions that should ensure genuine anti-corruption regulation of international standard, which also includes consideration of national policy objectives, particularly in the areas of economic, social and cultural rights. It is important for my readers to note that The Gambia’s draft anti-corruption law is currently awaiting passage by the National Assembly.

The issue we refer to at public domain is the independence of the Anti-Corruption Commission to prosecute. The draft law, as it stands, has clearly provided in Section 6: Functions of the Commission; Clause 6(h) that the Commission – may investigate and prosecute acts of corruption or other matters prosecuted under this Act; Gambia Anti-Corruption Bill, 2019. Then Clause 6(i) recommends the Attorney General (A-G) to institute judicial proceedings for the purpose of recovering or protecting public property, freezing or confiscating proceeds of corruption or payment of damages or other punitive and disciplinary measures. However, Clause 76(1) of the Anti-Corruption Bill 2019 further provides, and I paraphrase; Any prosecution of an offense under the Act or any other law prohibiting bribery, corruption and other offenses must be done with the consent of Attorney General; end of paraphrase.

Let me make a few comments on what I just said in paragraph four of my article. A closer look at clause 6(h) gives the Anti-Corruption Commission (ACC) clear powers of prosecution. Section 76(1) requires prosecutors to have the consent of the Attorney General (A-G). This isn’t necessarily problematic, to my knowledge, as a key aspect of an A-G’s role is usually to ensure that the state has authority to do the things it wants to do. Perhaps this is a little non-specific and could be qualified.

Clause 6(i) appears to involve the AG in conducting law enforcement actions contrary to Clause 76(1). We believe that Section 6(i) was drafted and then replaced by 76(1), but its consequent deletion was overlooked.

In light of these observations, PPI proposes two options for reconciling clauses 6(i) and 76(1). But before that, PPI would like to congratulate the Government of The Gambia for delegating the task of law enforcement to the ACC in order to gain public confidence in the process. However, PPI would like to suggest that the A-G should be informed of intended prosecution at 76(1) and should have two weeks to advise of any legal impediments to hearing a case in court, with the ACC having a duty to provide such advice at the trial to be considered with an indictment. This measure would remove the A-G veto and provide a limited time frame for such intervention.

On the other hand, when the bill is submitted for final reading, the Minister and Members of the National Assembly could agree that Section 76(1) did not intend that this provision should delay a prosecution by more than a few weeks and that the agreement was intended only for that withheld where there are clear legal obstacles to a court hearing. This is less expressive than (i), but it raises a question of which proposal is most acceptable in practice when the primary intention of officials is to get the bill approved.

In any event, it would be very useful if the Minister and the Assembly agreed that the ACC’s annual report would comment on the operation of this provision and whether it caused an undue delay or otherwise unnecessarily hampered the prosecution of which the ACC believed that it contained public interest.

In addition, it would be appropriate to propose that Clause 6(i) be either deleted as it is more succinctly covered by Clause 76(1) as amended or clarified. We also propose that it be reserved for particularly complex cases and come into effect once a relevant rule for this purpose has been formulated and agreed between the A-G and the Head of the ACC. For this to be effective this should be written in 6(i).

It is clearly preferable to reserve for particularly complex cases, but it is doable for A-G to compromise, although this would lead to horse-trading with the A-G and almost certainly be diluted. Again, if the final proposal to delete Clause 6(i) is adopted, the matter would still be included in the annual reports of the ACC.

Another point is the resources and expenditure of the Commission (section 9 and section 10 respectively). This appears to give the ACC both funding and discretion over the use of funds. The usual problem here is the adequacy of funds. Until the ACC becomes operational, there will be no 9(2)(c) proceeds. 

When the bill is debated in Parliament, the Minister and the National Assembly can be persuaded to raise two points. Either the start-up requirement and the limited effectiveness of ACC’s power to recover 10% of monies recovered through court proceedings initiated by the Commission. would be accounted for in the National Assembly’s appropriations under 9(2)(a) in the early years and that the adequacy of funding would be a matter which the Minster and the Assembly expects to be commented upon, as appropriate, in the annual reports of the ACC. Wasalam.