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Full text of Prof. Trevor Munore’s presentation to Sessional Select Committee of the House of Representatives on Human Resource and Social Development

  1. RESOLUTION BEFORE THE SESSIONAL SELECT COMMITTEE

WHEREAS the Office of the Political Ombudsman, a Commission of the Parliament, was established by the Political Ombudsman (Interim) Act;

AND WHEREAS, from all appearances the original mandate of the Political Ombudsman has been met;

AND WHEREAS, in light of budgetary constraints, the issue of value for money is raised, in that, it now costs the Jamaican taxpayers $18.6 million annually to maintain the Political Ombudsman and his office:

BE IT RESOLVED that Parliament reviews and revise the term and objectives of the Office of the Political Ombudsman with a view to determine:

  1. Its relevance to the existing political structure;

  2. If the expenditure of the office is justified;

AND BE IT FURTHER RESOLVED that, in light of the creation and embodiment of the structures of the electoral process in a Commission, the Office of the Political Ombudsman be declared redundant.

  1. SUBMISSION From NATIONAL INTEGRITY ACTION [further to NIA Letter to Committee Chairman, July 24, 2012]
  2. The Resolution states in part “from all appearances the original mandate of the Political Ombudsman has been met.”

To examine this proposition it is therefore necessary to recall the original mandate “of the Office”.  This mandate as set out in Part 3 Section 12 (1) of the Political Ombudsman (Interim) Act 2002 which states as follows:

“the Political Ombudsman shall investigate any action taken by a political party, its members or supporters, where he is of the opinion that such action –

  1. constitutes or is likely to constitute a breach of any agreement, code or arrangement for the time being in force between or among political parties in Jamaica; or
  2. is likely to prejudice good relations between the supporters of various political parties.
  3. The Code “…for the time being in force between or among political parties in Jamaica” referred to in the Act is entitled “AGREEMENT AND DECLARATION ON POLITICAL CONDUCT.” This agreement and declaration was signed by the Leaders of the People’s National Party and the Jamaica Labour Party in George William Gordon House in September 2005.  This Code of Political Conduct bound “all officials of political parties” to take “such actions as are necessary to ensure full compliance…by all officials of political parties” with eight sections of the Code entitled

1) Non Violence and Non Intimidation;
2) Safety of Private and Public Property;
3) Avoidance of Confrontation;
4) Public Utterances;
5) Freedom of Access;
6) Avoidance of Defacing of Buildings or Installations;
7) Political Tribalism;
8) Code of Ethics

  1. A cursory review of the terms in relation to these sections of the Code shall reveal:

 Firstly that most provisions would relate primarily to elections and to the election campaign period.  Secondly, such a review would reveal that the most extreme forms of non-compliance, reflected for example, in the use of armed violence have diminished.

  1. Equally obviously however, any honest review shall confirm that non compliance with the Code has not been eliminated and hence the continued necessity for the retention of the Office whose statutorily grounded function requires investigation of breaches of the Code.  Specifically, Jamaica still has some way to go before “the parties eschew the practice of political tribalism…” as required by the Code of Political Conduct.  Relatedly, Jamaica still has some way to go to be in compliance with the following term of the Agreement which states:

“Officials who by virtue of their positions have control or influence over the appropriation of public funds or other public resources should not discriminate against any individual, group or community on the basis of political allegiance or support.”

  1. This commitment clearly transcends elections and election campaigns. Complaints or allegations of its violations equally clearly continue to require investigation.  The body charged by law with that function is the Office of the Political Ombudsman.  To use the terms of the Resolution “the original mandate” has clearly not been met.

  1. In fact, to their credit, the leadership of both political parties in September 2005 committed themselves to go beyond the terms of the JOINT AGREEMENT AND DECLARATION ON POLITICAL CONDUCT.  The leaders bound themselves to

“Continue to work together on additional measures (including the vexed question of distribution of scarce benefits) which may be payment to reinforce this Agreement to improve the relations between the members and supporters of all parties….and to encourage peaceful political co-existence…”

  1. TOWARDS “ADDITIONAL MEASURES”

  1. By 2011 two additional measures were well advanced:

  1. to strengthen the Code of Political Conduct;

  2. to establish the Office of the Political Ombudsman in the Constitution of Jamaica

  1. In relation to strengthening the Code of Political Conduct, successive Annual Reports of the Office of the Political Ombudsman laid out specific recommendations.  The 2008 Report to Parliament, for example recommended as follows:

“The Political Code of Conduct should be extended beyond that of a gentleman’s agreement and to one in which sanctions are applicable to those found in breach of it…The Political Ombudsman should therefore be given the power to

  • Level a fine on candidates and the party they represent for such breaches

  • Refer offenders of the Code to the Director of Public Prosecution

  • Recommend to Parliament the removal of parliamentarians he has found to be unfit for office and to carry the responsibility of public political representation.”

In accordance with this recommendation, Section 22 of the Act would need to be amended in order to specify breaches of the code of conduct as offences and to attach to such offences appropriate severe penalties.  It is also recommended that the Ombudsman be empowered to investigate not just inter, but intra-party behaviour in breach of the code of conduct.  And further, that his office need not give prior notice to the parties concerned of any pending investigations.”

  1. In carrying forward this recommendation, the previous administration in its monthly update, in September 2011, to the Council of the Partnership for Transformation, chaired by the Prime Minister, reported on “A Cabinet Submission Seeking Approval To Issue Drafting Instructions to Legislate Offences and Penalties For Breaches to the Code of Political Conduct.”  This document merits full reproduction as it proposes measures going in the very opposite direction from that proposed by the resolution before the Sessional Select Committee:

Points To Note

Proposed to enact legislation to:

  1. Incorporate the Agreement and Declaration on Political Code & Code of Political Code

(the Code) in the Political Ombudsman (Interim) Act (soon to be the Political Ombudsman Act)

 

  1. Amend sections 96, 97 and 103  (“Illegal Practices”) of ROPA to create criminal offences and penalties for breaches of specified clauses of the Code (See Appendix 2)

 

  1. Amend the Political Ombudsman Act  to empower the Ombudsman, consequent on investigations, to refer  alleged criminal breaches  to the Director of Public Prosecutions for prosecution  under the abovementioned  sections of ROPA, to the  Special Prosecutor for alleged corruption offences under the Corruption Prevention (Special Prosecutor Act), the Impeachment Committee of Parliament for consideration and  submission to the Impeachment Tribunal for determination,  or the Electoral Commission of Jamaica  (ECJ) (see # 5)

  1. Amend the Political Ombudsman Act to make explicit, provisions for investigating not only intra-party, but also inter- party breaches

  1. To refer to the ECJ such breaches which may require party de-registration or disqualification of state funding or which may  attract civil sanctions, with monetary penalties,  and in default, court action

In sum, the role of the Political Ombudsman would be strictly investigative, with referrals to various prosecutorial bodies for determination.

Note that offenders may be removed from Parliament or prevented from being so elected, for breaches under the amended sections of ROPA, or by decision of the Impeachment Tribunal. Note also that it is proposed to amend the Code to include discrimination as an offence under the Code, as well as the inclusion of anti-corruption provisions.

Here were being proposed and agreed measures to extend the provisions of the Code, to give the Code teeth so that breaches may attract sanctions under the law and to strengthen the authority of the OPO.

  1. In relation to the second measure, the September meeting of the Council of the Partnership For Transformation received a further update relating to “Legislation (Constitutional Amendment – Simple Amendment) to give Constitutional Authority to Important Public Bodies namely:

  • Electoral Commission

  • Contractor General

  • Public Defender

  • Political Ombudsman

  • Local Government”

  1. This update indicated that in respect of giving constitutional authority to the OPO “policy issues resolved after discussions with the Prime Minister, CPC and Opposition.  Bill to be tabled in October.”  Indeed, a USAID Consultant drafted the Bill entitled “An ACT to Amend the Constitution of Jamaica to Provide for the Establishment and Regulation of Critical Bodies.”  Amongst these “critical bodies” was the Political Ombudsman and in the proposed Memorandum of Objects and Reasons it was stated that “the current provisions of the respective Acts [including the Political Ombudsman (Interim) Act] which have been incorporated in the Bill will be repealed upon the passage of the Bill”.

  1. IN RESPECT OF THESE TWO ADDITONAL MEASURES, THERE APPEARS TO HAVE BEEN CONCENSUS BETWEEN THE TWO PARLIAMENTARY PARTIES, THE PRIVATE SECTOR AND CIVIL SOCIETY THAT THE OFFICE OF THE POLITICAL OMBUDSMAN NOT ONLY WAS NOT REDUNDANT, NOT ONLY CONTINUED TO BE RELEVANT BUT NEEDED TO BE STRENGTHENED.

  1. THE ISSUE OF BUDGETARY CONSTRAINTS

  1. There can be no doubt that the issue of value for money raised by the Resolution is not only relevant to the Office of the Political Ombudsman but in relation to every single institution and office maintained by tax payers at a time of significant pressure and scarcity of resources.  Bearing in mind however that the original mandate of the Office has not been fully met and that there continues to be a serious need to fulfill functions for which the Office was established, the issue then becomes how to enhance the capacity of the Office to build its institutional capability rather than to dissolve it.  One way to improve the Office’s surveillance and oversight capability is for the development of a more robust partnership with civil society bodies, in particular with Citizens Action For Free and Fair Elections (CAFFE) whose volunteers could add eyes, ears and legs to the Office of the Political Ombudsman.

  1. It has been suggested in the Resolution that the “creation and embodiment of the structures of the electoral process in the Commission” replicates the Office of the Political Ombudsman, thereby rendering that Office redundant.  It has already been established that the Code of Political Conduct in relation to which the OPO is authorized to investigate allegations of breaches does NOT apply exclusively to elections.  Hence, on the face such investigations would fall outside of the purview of the Electoral Commission of Jamaica, a body concerned exclusively with election-related matters.  The functions of that Commission are clearly set out in Section 6 (1) of the Electoral Commission (Interim) Act 2006.  That Section itemizes 15 different specific functions relating to the governance of elections.  None of these refer to nor could reasonably be redesigned to empower the Commission, for example, to investigate “Officials who by virtue of their positions have control or influence over the appropriation of funds or other public resources should not discriminate against any individual, group or community on the basis of political allegiance or support.”

  1. That responsibility which continues to be in need of fulfillment is properly the function of an enhanced and constitutionally established Office of the Political Ombudsman.  Hence there is no basis to declare the body redundant on grounds related to replication of the functions of the Electoral Commission.

Trevor Munroe (Professor)

Executive Director – National Integrity Action

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