Peter Espeut | What the gag clause does

There are two major ‘Gag Clauses’ in Jamaica’s Integrity Commission Act (ICA). One is embodied in Section 53(3) and the other is in Section 56(1).

The ‘Gag Clause’ in Section 53(3) of the ICA prohibits the Integrity Commission (IC) from telling the public about its investigations before the relevant report of the investigation is tabled in Parliament.

The ‘Gag Clause’ in Section 56(1) of the ICA requires employees of the IC to treat all information, statutory declarations, government contracts, prescribed licences and all other matters that relate to any matter that is before the IC, as secret and confidential.

A breach of either of the foregoing constitutes a criminal offence that is punishable by a fine not exceeding J$1 million or imprisonment not exceeding one year.

These ‘Gag Clauses’ do not prevent the IC from revealing that investigations are taking place, and the category of person being investigated. So the latest IC Annual Report reveals that 13 members of parliament (MPs) and one senator have been referred for illicit enrichment probes over the seven-year period from April 1, 2018, to March 31, 2025. In addition, seven local government councillors, one permanent secretary, seven heads of entities, and 36 persons in the category called ‘other public officials’ have faced similar referrals over the period.

This information is useful, but unsatisfactory for a number of reasons. There are only 63 MPs, and if 13 of them – a little more than one in five – are under investigation for illicit enrichment, there is a 20 per cent likelihood that my MP and yours is under investigation. Should Jamaican law put Jamaican voters in the position of very possibly voting for a corrupt politician?

PROTECT POLITICIANS

Simply put, the ‘Gag Clause’ is designed to protect politicians under investigation for corruption, including the crimes of ‘illicit enrichment’ and ‘unexplained wealth’. They may, in fact, be completely innocent. On the other hand, they may be guilty.

If I know that even an accusation will cause my name to be called in public, this will deter me from even thinking of doing something corrupt. The secrecy caused by the ‘Gag Clause’ enables me to ‘try a t’ing’, knowing that the IC cannot call my name unless they have an airtight case. The ‘Gag Clause’ is an incentive for corruption.

If I have been accused and my name has been called for all to hear, I will have a big incentive to provide all the info the IC needs to declare me completely innocent. The fact of the ‘Gag Clause’ allows me to drag out the investigation for years (especially if I am guilty), knowing that my name can never be called. The ‘Gag Clause’ is an incentive for corruption.

Sometimes the IC needs critical information to complete their casefile that will allow them to prosecute corrupt politicians. I may (unknowingly) possess this critical information. If the IC was able to advise the public of investigations under way, I would realize that what I know is important, and come forward to tell what I know. The ‘Gag Clause’ prevents useful information from coming to light, and encourages corruption.

If the asset declarations of politicians were made public, everyone would be able to see which house and land and limited liability company (LLC) every politician declares. Many may know of undeclared houses, lands, and LLCs, and will be able to provide evidence to finger politicians that make false or incomplete declarations; and therefore uncover unexplained wealth, and illicit enrichment. The ‘Gag Clause’ makes false declarations and illicit enrichment easier to hide.

CIRCUMVENTED

The only way for the ‘Gag Clause’ to be circumvented is if the politician under investigation (stupidly) takes the IC to court, and the IC files an affidavit containing the reasons they suspect illicit enrichment.

An archetypal corrupt arrangement goes like this: you give a donation to my party’s election campaign – or to me personally – and I will arrange for you to get a government contract, or a lucrative licence, or a waiver. How do corrupt politicians hide this arrangement? Simple! First, they include a ‘Gag Clause’ like Section 56(1) in the ICA, making all information, statutory declarations, government contracts, prescribed licences and like matters secret and confidential and punishable by a hefty fine and a prison term; and then second, they make all political donations and contributions private and secret. The ‘Gag Clause’ supports bribery, graft, nepotism, cronyism, and influence peddling.

And no taxpayers dollars are involved, which makes some people believe the transaction is OK.

This is the present situation in Jamaica, land we love!

The politicians (the corruptees) love it!

And the private sector (the corruptor) loves it!

How do decent honest Jamaicans change this evil situation?

One political party has to campaign on a promise that if they are elected, they will remove the ‘Gag Clauses’ from the IC Act.

One political party has to campaign on a promise that if they are elected, they will make all government contracts/licences/waivers public: the persons/entities who get them, and their value.

One of the parties has to campaign on a promise that if they are elected, they will make public the annual asset and liability declarations of all politicians: the prime minister and leader of the Opposition, all Cabinet ministers, all MPs and senators.

One of the parties has to campaign on a promise that if they win, they will make all donations to political parties public.

To vote for a party that does not make these promises is to vote for the continuation of corruption.

If no party makes these promises, then withhold your vote. You cannot support evil.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com