Anti-Corruption Amendment Bill gets National Assembly go ahead |16 April 2021
The National Assembly during yesterday’s session continued its work on public bills, considering and approving the Anti-Corruption Amendment Bill, as amended.
To present the Anti-Corruption Amendment Bill, a delegation comprising Designated Minister Jean-François Ferrari, Attorney General (AG) Frank Ally, chief executive of the Anti-Corruption Commission of Seychelles (ACCS) May De Silva, and legal advisor for the commission Azarel Ernesta constituted the panel from which members sought further clarifications.
In starting, Minister Ferrari noted that the Bill proposes amendments to the Anti-Corruption Act 2016, through which the Anti-Corruption Commission of Seychelles (ACCS) was established, as a public entity, with powers to investigate, detect and prevent corruptive practices in Seychelles. The legislative framework and entity are in line with the United Nations Convention against Corruption, signed by Seychelles on February 27, 2004, and ratified on November 8, 2005. With the aim of ensuring the convention is implemented, the Anti-corruption legislation was promulgated in 2016.
Under the 2016 legislation, the commission is constituted by a chairperson, vice-chairperson, and five commissioners appointed by the President, who are responsible for supervising the commission, in terms of performance and functions. A chief executive officer is also appointed by the President to implement the decisions of the commission.
The decision to restructure the commission was first announced by President Wavel Ramkalawan during the state-of-the-nation address on February 1, necessitating amendments to the existing Act.
Among the amendments provided for by the Bill, are for the position of chairperson, vice-chairperson and the commissioners to be abolished, to mean that the CEO is in control of the direction and administration of the commission. The amendment also proposes that the title be changed from ‘CEO’ to ‘commissioner’.
In order to retain the independence of the commission to conduct investigations within the public sector, the commissioner is to be appointed by the President for a five-year term, upon the recommendation of the Constitutional Appointments Authority (CAA) and can only be removed from such a position in accordance with legal provisions. The commissioner can serve a maximum of two terms in office.
Should a commissioner wish to step down from the position, they can do so on condition that they issue to the President at least two months’ notice in writing, in which case the President can appoint another qualified individual to fill the post, for a maximum period of six months.
Elaborating on the amendments, Minister Ferrari outlined the various instances whereby a commissioner can be removed from office, including if found guilty of any misconduct or serious disciplinary offences or if not meeting the expected performance standards in discharging functions, upon conviction of an offence for which they are sentenced to three months imprisonment or more, or if they are found to be mentally or physically incapable of discharging their functions responsibly.
In the event that the commissioner themselves are being investigated, the President may suspend the commissioner pending conclusion of the investigation. The commissioner can only be removed from their function if the CAA makes such a recommendation to the President, following an investigation. The President himself can authorise CAA to conduct investigations in relation to the commissioner, upon receiving complaints or reports against the commissioner.
In addition to managing the commission, the commissioner will be required in each financial year, to prepare an annual financial statement for the upcoming year, to be submitted to the Ministry of Finance, Economic Planning and Trade, in a bid to ensure that adequate funds are secured in the national budget for the continuous operation of the commission.
The Anti-Corruption Amendment Bill also makes provisions for an advisory council, which has powers to review legislation and to make recommendations to the President to implement changes to laws that facilitate corruption.
The council, comprising four members, one of whom is to be designated chairperson, has as its main role the responsibility for supervising the commission administratively, and to offer guidance and advice to the commissioner when necessary. Each council member will be appointed for three-year terms by the President, upon the recommendation of the CAA, based on principles including integrity, qualifications and expertise in their respective domains, namely, anti-corruption, law or law enforcement, accounting, finance or administration, and forensic accounting. Council members can be reappointed.
According to Minister Ferrari, the amendments make it clear that the council will not interfere with the running and operations of the commission, in relation to any cases or prosecutions, and it is to meet at any time the commissioner seeks guidance or advice on any matter.
In view of the assembly’s approval of the decision to dissolve the Public Officers Ethics Commission, the responsibility is thus transferred to the ACCS. As such, the amendment bill proposes that section 6 to section 13 of the original legislation be substituted, as well as section 19 to section 22 relating to the appointment of the CEO, and other relevant matters. The new propositions replace section 6 to section 12, sections; 2, 15, 17, 52, 52 (a), 53,55,56,57,58,59,60,61,63,69,72,83 be amended in consequence. A new section, 80 A is also inserted into the law, pertaining to the submission of financial documentation.
“We must not forget that the commission is a body corporate, and therefore a public authority, but not government. Based on this, as you are budget dependent, and part of public service, the Appropriation Act will make provisions for your budget,” AG Ally clarified, with regards to section 80A.
With the enforcement of the amendments, the chairperson, vice-chairperson and commissioners will cease to discharge their functions immediately.
During the deliberations, members expressed differing views as to the proposed amendments. Hon. Wallace Cosgrow, United Seychelles (US) representative, suggested that the 2016 legislation presented a balance of powers between the CEO and commissioners, whereas the amendments imparts to the commissioner too much power, while taking away from the advisory council.
“I will continue to maintain that with the ACCS law, instead of progressing in terms of good governance and accountability, I feel that this law is making us take steps backwards. Rather than evolving the power, the power is now being centralised to one person, and I think we need to pay attention when there is too much power in the hands of one person,” Hon. Cosgrow pointed out.
Numerous other members afforded their support for the Bill, including Hon. Sathyanarayan Naidu, Hon. Wavel Woodcock, Hon. Waven William who proposed that the commission needs to be more effective in discharging its functions and delivering on cases, as expected by taxpayers. By revamping the commission, Seychelles’ position is likely to improve on major international corruption indexes, Hon. Woodcock said.
Similarly to Hon. Cosgrow, leader of the opposition in the National Assembly Sebastien Pillay advanced a similar argument in saying that the Bill leaves no room for the council to have an oversight role, and that the amendments are mismatched to the objective of the law, as the commissioner is only answerable to the President. He proposed that the council have more of a role in the functioning of ACCS, as it would otherwise leave room for the law to be abused.
Hon. Norbert Loizeau, Linyon Demokratik Seselwa (LDS) representative for Bel Air, directly addressing CEO De Silva, encouraged that in her function as commissioner, until the end of her term as provided for by the Bill, make the most of the budget allocation to the commission to tackle major corruption matters that is in the public interest, also conveying his support for the amendments.
For his part, Hon. Gervais Henrie urged members to not focus on the way in which the entity is structured, but to keep the focus on the vision and mission of the commission, also noting that the absorbing of the functions of the POEC, brings about coherence in the government’s efforts to battle against corruption and ensure good governance and transparency within the public service.
Members sought clarifications as to the amendments from AG Ally, who detailed and outlined the various provisions and legal procedures referred to by the amendments. In particular, there were concerns as to the process for making and investigating complaints against the commissioner, and the role of the advisory board.
Concluding the deliberations on the motion, Designated Minister Ferrari once again defended the amendments, in saying that the Bill has been drafted with an objective to impart to the authority the independence, resources and space to operate efficiently.
The Bill was approved by 22 votes in favour. Seven members abstained from the vote.
Prior to concluding the final sitting for the trimester, Speaker Roger Mancienne allowed Hon. Gervais Henrie to raise a matter of privilege under Standing Orders 40(1) with regard to a statement made by Hon. Johan Loze during the session. Speaker Mancienne however noted that the matter will be addressed during the next sitting.
In concluding, Speaker Mancienne urged all members and the general public to be cautious of statements they make, as it risks causing unnecessary panic, and reflects badly on the Ministry of Health. He was met with some disorder as members shouted over each other, resulting in Speaker Mancienne instructing Hon. Pillay and Hon. Loze to leave the assembly, as the statement was directed at Hon. Pillay who had earlier sought through the Speaker information regarding the Covid-19 situation in the country, whereby he also claimed that an expectant mother had contracted the virus, a statement which the Public Health Commissioner categorically denied during the weekly press update. All ten US members walked out behind Hon.Pillay and Hon. Loze.
The assembly resumes on May 10, 2021.
Laura Pillay