Last week we commenced examination of the provisions of the Prevention of Corruption Act 2010 which has been passed in both Houses of Parliament but continues to await proclamation by the Governor General. Provisions relating to the establishment of the Prevention of Corruption Commission and its mandate were considered. We now look at Sections 12 through 23 of the Act relating to financial disclosure.
People in public life are required to file with the Commission a declaration of assets, income, debts, offices, assets of spouse and minor children and gifts over $500 given to him directly or through a third party by people who are not family or members of his household. In the case of the assets of a spouse and children, the provisions do not apply where the parties are separated.
The declaration of a member of the Commission is filed with the Governor General. These items must be declared whether earned directly or by means of an agent, whether local or overseas, and it also includes assets being held by the person in public life as a trustee. The penalty for failing to file or making a false declaration is $500,000 and/or five years imprisonment.
The rationale for including spouses and children within the net should be obvious. If only the person in public life is required to declare, then they could simply transfer all their assets to the said spouse and/or children. It happens all the time when persons are trying to avoid the settlement of debts. Objections to this should give us all pause.
Since they hold the keys to the Treasury, there are also specific provisions relating to Members of Parliament. Section 13 requires that in addition to the basic declaration, a minister is required to state where he was employed for the period of 15 years prior to the filing of the declaration. Failure to file or knowingly making a false declaration nets a fine of $500,000 and/or imprisonment for five years. The Commission needs to be able to work out if the sudden acquisition of assets was as a result of hard work and employment related earnings or some other underhanded means.
The Commission is required to peruse each declaration and may, in its discretion, seek clarification or further information on any information contained in the said declaration. In the case of declarations filed by members of the Commission, the Governor General appoints his own committee of persons (a former judge, an attorney of minimum 15 years’ call to the Bar and a person with at least 15 years financial or accounting experience) to examine them.
If and when the Act comes into force, any person in public life will have three months in which to file the relevant declaration. Anyone who falls to be classified as such after the Act comes into operation will have six months in which to file. The penalty is the same as mentioned above. Section 16 provides for the filing of annual declarations within three months of the end of the year or in other words by March 31 each year.
As discussed in an earlier article, political parties in the UK are required to account for every cent over and above $500 that finds its way into their war chest. Section 17 of the Act provides for the secretary of a political party to file the declaration on behalf of the party outlining the name and address of every financial contributor in respect of any donation made in the two years before and the six months after a general election.
The reason for declarations by political parties should be obvious. People can hijack democracy and buy a government, government contracts, government assets and anything else they want in exchange for party contributions. However, for the life of me, I cannot understand why the provision is limited to the two years before and six months after an election. There’s a five year constitutional period of Government. As a contributor, I can just donate as much money as I want outside of the period mentioned and the party has absolutely no requirement to declare it, thereby defeating the purpose of the legislation. If they haven’t, someone should look at the UK and any other Commonwealth legislation pertaining to the declaration of party assets and contributions and see how far short this provision falls.
Everyone and their mother had an opinion about whether Donald Trump should have put his assets into a blind trust. Those are covered by Section 18 of our Act and declarations must state what assets have been transferred and when. A blind trust is where a person transfers assets to a trust company not held by himself or in which he is not a director of that or any related company. Associates of the person in public life (relatives, business partners et cetera) cannot be involved in the trust company either.
I still do not see any reason why this Act cannot be proclaimed. Can you?
(Alicia Archer is an attorney-at-law in private practice)