The 2008 amendments were drastic. They, inter alia, granted prosecutorial powers to the ACC and created additional twenty offences. More significantly, the framers of the new Act intended to bring laws relating to corruption in line with the provisions of African Union Convention on Preventing and Combating Corruption and Related Offences, and the United Nations Convention Against Corruption (UNCAC).
Most importantly, the Commission now seeks to address the causes of corruption and establish a systematic and concerted approach to enhancing integrity within the public sector – by mandating assets declaration by all public officials. Clearly, this was meant to not only deter them from corruption, but also to keep tabs on their financial activities.
This piece thus seeks to provide a succinct exposé of the existing practice by looking at policy considerations, the legal framework, the ACC’s institutional arrangements and the categories of public officials who should declare their assets. Furthermore, the work looks at the ACC’s verification procedures and offences arising from failure/or false declaration; and powers to prosecute in an event one or more of the offences are committed. Policy recommendations will also be proffered to help bolster the ACC-led fight against corruption.
Assets declaration is a means through which public officials are required to disclose their income, wealth and liabilities in order to document increases or decreases thereof. The ACC Act 2008 provides, in its interpretation section, that a public officer “means an officer or member of a public body including a person holding or acting in an office in any of the three branches of government, whether appointed or elected, permanent or temporary, paid or unpaid.”[1] These categories have been divided into two broad groups, public servants and civil servants. The latter needs to go through scrutiny by the Public Service Commission.
Mandating officials to engage in the assets declaration process will encourage respect and protection of institutional ethics and an adherence to legislative provisions. Assets declaration was incorporated into the 2008 Act as amended to encourage proper integrity in public life.[2] Under the heading “Integrity in Public Life”, section 119 of the 2008 Act provides that every public officer shall, after three months of the commencement of the legislation, deposit a sworn declaration of his assets and income and new employees shall do likewise within three months after their employment.[3] Furthermore, public officials are required to declare their assets after disengaging from public offices, thereby providing an opportunity for an accounting of whether their personal wealth increased while they held office. In other words, in addition to the need for declaring assets after a public officer has been employed, he is also obligated to do same when he leaves office. Also of note is the fact that the Act requires public officials to make a declaration concerning the assets and liabilities of their relatives.
Section 120 gives the ACC powers to examine, and when appropriate, request for further information for all declarations. The purpose of the examination is to ascertain the truth of any declaration. Upon satisfaction of any investigation, the Commission will publish a certificate of the declaration in a Gazette.
The Act further provides for possible offences related to the declaration of assets including the complete failure to make a declaration with the Commission. Also, a public officer who knowingly makes a false declaration commits an offence. But, a public officer who is dissatisfied with the content of their assets declaration certificate published by the Commission has a right to challenge it. In the event that a public officer feels that his/her assets/liabilities have been wrongly documented and published in the Gazette, the Act makes provision for such wrongful documentations to be challenged by the affected public officer. For any of the offences relating to declaration of assets, a person upon conviction shall be liable to a fine of twenty million Leones, imprisonment of at least one year or both a fine and imprisonment.
It is no easy task to use assets declaration as a way to fight corruption. It is even more daunting if the assessing institution lacks the capacity to achieve its projected goals. Assets declaration came into existence as a result of the amendment to the Anti-Corruption Act 2000. Following the amendments, the ACC established a specialised unit in charge of assets declaration. This unit is not only responsible for collecting declaration forms, but is also charged with the responsibility of monitoring the process as provided by law. It is the duty of public officials to update declarations made with the Commission, especially with regards to changes arising from increase or decrease in earnings. The responsibility of updating and verifying this information squarely lies with the Commission. Such monitoring or verification should be a key element in the ACC’s prevention framework and would be especially helpful if put into practice.
The assets declaration process should be conducted in a very smooth and orderly manner. There should be respect for privacy, but all public officials and even some private individuals (when required by law) should be subjected to scrutiny. Site verification exercises should be undertaken in order to ascertain that public officials indeed have what they claim to have in their declaration forms. Unfortunately, the Commission has not undertaken any comprehensive verification to determine the correctness of declarations before it. According to officials of the Assets Declaration Unit, where verifications have been conducted, they were done at low ebb. Despite some efforts to verify declarations made by those considered to be “politically exposed,” the Commission appears to lack the capacity to carry out or achieve the main object of the verification process. A number of reasons account for this failure; firstly, the workload of the Commission far exceeds its human and material capacities, thus undermining its efficiency or anticipated outcome. The Asset Declaration Unit is grossly understaffed, which is why the unit has hardly undertaken a thorough verification process. Officials of the unit say efforts are underway to recruit more staff, including archivists and data entry clerks. However, further delays could undermine one of the ACC’s best means of preventing and prosecuting persons accused of corruption.
Apart from the fact that some public officials might show outright disregard for the Commission by not declaring their assets as specified by law, it is possible that those who declare might make false declarations. While such act is punishable by law pursuant to Section 122(b) of the ACC’s 2008 Act, the Commission must ensure that public officials declare their assets and in addition, do a progressive stock taking in order to determine any increase or decrease and also identify and expose any anticipatory declarations that might have been made. More critical, however, is the fact that assets declaration forms are confidential documents and in most circumstances they cannot be accessed by the public. For this reason, it is highly unlikely for their contents to be verified by the public. While the credibility of the Commission may not be questioned at this point, it is doubtful whether they have conducted any verification exercise so far. Even if the Commission has ever authenticated the contents of assets declaration forms, it is highly unlikely that any report from such verifications has been disseminated to the public.
A challenging question will be how much can the public contribute to verifying claims made in declaration forms. While the Commission has the expertise to undertake verification exercises, public involvement, even if on a confidential basis, can be of importance. But, the verification exercise seems to be cumbersome in such a way that third parties are usually excluded. It appears that enforcing the principle of confidentiality may defeat the purpose of guaranteeing public confidence in asset declaration by public officials. The publishing of certificate of declaration in a Gazette does not remedy this situation as such publications do not state the Commission’s position with regards whether they have conducted verification or made any progressive stock taking of public officers’ assets. The public’s right to know I believe is very important, as this will enable us to feel part of the process and be better placed to contribute in identifying false declarations.
The extent to which the Commission should protect confidentiality should be limited insofar as relaying any information in declaration forms will not exposed an official to insecurity. While statements of claims can be classified, information that does not touch on personal character or achievement should be accessible for public verification. For instance, in the event the Commission is prosecuting for false declaration, it is likely that the forms containing such false declarations will be put in evidence, which will make it public document, and by extension be accessible to the public. There are certainly ways of involving the public in verification exercises without necessarily compromising confidentiality principles.
To make the process of verification meaningful, the ACC must be in a position to determine whether incomes are proportionate to declared assets. In other words, assets that have been acquired during the holding of public offences should be subjected to verification in line with legitimate income. This places an extra burden on the Commission to determine such legitimacy. If the Commission continues to classify declaration statements, how would the public monitor the process in determining the efficiency of the Commission and the probity of public officials? Answers to this and other questions might give an insight as to what the public should expect from the ACC.
Overall, the Commission must figure a procedure so that it can undertake regular monitoring of declared assets. An assets declaration system will place on those in public positions an obligation to justify increases which are out of line with their legitimate sources of income. It is important for the Commission to be undertaking regular stock taking and review asset forms declared by public officials. Routine and random checks are critical not only because it can help nip corrupt practices in the bud, but it would also help the Commission in initiating investigations on its own rather than relying on media reports or tip offs from the public. It also helps the Commission to easily detect officials who choose to make false declarations. Public officials have an obligation to declare their assets, and it is inexcusable that three years after the improved version of the Act was amended, there are still a good number of public officials who have refused to do so. They need not be reminded that their refusal constitutes a crime, and is punishable by law. So how much effort is the Anti-Corruption Commission making to enforce the law?
The Commission must not only ensure that verification and periodic stock taking is carried out for public officials who declare their assets, but that those who refuse to do so are held accountable. It is about time that the Commission started using the powers at its disposal, otherwise, public officials will continue to get away with corruption. And it hurts Sierra Leone a great deal! There can be no excuses for their refusal to declare assets, unless they have some things up their sleeves. As a matter of law, assets declaration forms are confidential documents, which are meant purely to help the Commission in its work.
Asset declaration as a mode of fighting corruption should be seen as a means of promoting the culture of transparency and accountability. Monitoring should be considered as a key element in ensuring the effectiveness of this prevention framework. While the ACC has among its functions a monitoring role, the human and material capacity might not be convincing in achieving the huge task of determining whether public officials have acquired disproportionate wealth.
As an alternative, the Commission should be assisted in ensuring effective assets declaration. Taking the magnitude of the work, it will be prudent to have additional institutions or agencies working on prescribed code of conduct in line with provisions of the 2008 ACC Act. This, it is hoped, will provide for efficiency and will allow the ACC more time to implement other approaches in their fight against corruption.
[1] See Anti – Corruption Act, 2008
[2] See Annual Report of the Anti-Corruption Commission, 2008
[3] See Anti – Corruption Act, 2008, pt VIII sec. 119
