The elephant in the room: addressing corruption in PNG

Dr Eric Kwa delivering a lecture at the Development Policy Centre, ANU on 15 November 2017
Dr Eric Kwa delivering a lecture at the Development Policy Centre, ANU on 15 November 2017
Written by Eric Kwa

There is a general consensus that Papua New Guinea (PNG) is in a deep financial crisis. The country is in desperate need of help from both within and outside PNG. The political and bureaucratic leadership is working hard to sustain the country under this financial climate.

The Government has reached out to the international community for financial assistance. There are some positive responses, which is encouraging for the country. However, this is a temporary measure and not sustainable. The real challenge is dealing with the elephant in the room – corruption – which permeates all aspects of PNG society. Unless PNG tackles this problem head on, any external or internal interventions to financially rescue the country will be futile.

The new Government has acknowledged that improving governance is crucial to the future of PNG. The Government is now embarking on several initiatives to improve governance systems to restore confidence in the government and its systems and processes. The Constitutional and Law Reform Commission (CLRC) has been party to many of these initiatives and it is in this context that I would like to share with you these proposals.

If PNG is to improve governance and encourage investment in the private sector, and strengthen its bureaucracy to deliver basic and other services to the people, the new Government must first of all combat corruption as its number one priority.

Corruption is a major problem for PNG. In 2016, it ranked 136 on the Transparency International’s Corruption Perception Index, the same ranking as Guatemala, Kyrgyzstan, Lebanon, Myanmar and Nigeria. As one of the most corrupt countries in the world, PNG has a huge task ahead to improve this image. PNG signed on to the United Nations Convention Against Corruption on 22 December 2004 and ratified it on 16 July 2007.

In 2011, the Government launched the National Anti-Corruption Strategy. After the 2102 National Elections, the O’Neill Government supported the establishment of an inter-government anti-corruption unit called ‘Task Force Sweep’ to investigate and prosecute crimes of corruption. This team was disbanded about two years later when the Prime Minister was implicated in a corruption scandal.

The Government, however, in 2014 proceeded to request that Parliament approve the establishment of the Independent Commission Against Corruption (ICAC) by amending the Constitution. A new Division VIII.3 under Section 220 of the Constitution was inserted through Constitutional Amendment No. 40, enabling the establishment of ICAC. This constitutional amendment paves the way for the enactment of an Organic Law on the Independent Commission Against Corruption and its full establishment.

In 2015, the Parliament took carriage of the proposed ICAC Organic Law Bill. The Bill was referred to the Parliamentary Committee, and unfortunately that’s where it stayed.

The current Government has firmly resolved to tackle corruption. At the formation of the new Government (the Alotau Camp eventually formed Government on 4 August 2017), the Alotau Accord II was adopted, a political strategic plan to guide the Government through the five-year term of the new Parliament.

The Alotau Accord II sets out five priority areas for the new Government. These are: economic growth; infrastructure; law and order; education; and health. The Government acknowledged that to deliver on these five priorities, it needed to reform and strengthen the systems and processes of government. A key element of this strategy is to improve good governance – meaning fighting corruption!

The Prime Minister has publicly announced that the Government would like to introduce the Organic Law on ICAC either in this month’s sitting of Parliament, or in February 2018. The Minister for Justice and Attorney General, Hon. Davis Steven, has been tasked with finalising the ICAC bill for presentation to Parliament.

The key elements of the Organic Law on ICAC are:

  1. Purpose – the main purpose of ICAC is to prevent, reduce and combat corrupt conduct.
  2. Jurisdiction – ICAC’s primary jurisdiction is to investigate and prosecute ‘corrupt conduct’ of ‘public officials’. The definitions of these two terms are broad and cover a wide range of corrupt conduct by public servants and public leaders.
  3. Powers and functions – ICAC has a wide range of powers and can investigate and prosecute those guilty of corrupt conduct, either with the support of other agencies or on its own.
  4. Composition of the Commission – ICAC will comprise three Commissioners who must be persons of integrity, and can be non-citizens.
  5. Whistleblowers – there are strong provisions for the protection of whistleblowers.

There are three main criticisms of the draft Organic Law on ICAC: (1) power to arrest; (2) power to prosecute; and (3) unexplained wealth. The Government has listened and sought advice from police and the Public Prosecutor on the first two matters. In relation to the first issue, the police have explained that the Constitution and recent Supreme Court decisions declare that only police can make arrests when there are allegations of crimes.

With regard to the second issue, the Public Prosecutor has indicated that he will not be sharing this constitutional function with another agency. Only the Public Prosecutor has the power to delegate his powers of prosecution to another agency or person.

The final point is covered by the Leadership Code, which is handled by the Ombudsman Commission. It is the Ombudsman Commission that can seek explanations from leaders about unexplained wealth. For the public generally, the Proceeds of Crimes Act is already in place to capture such instances.

In my view, the most critical goal at the moment is to establish ICAC and get it operational. The Constitutional Amendment establishing ICAC is already in force. PNG needs only to enact the Organic Law on ICAC to fully implement and operationalise ICAC. It is encouraging to note that the Government is serious about ICAC and wants to see it established sooner rather than later.

This is an edited version of a lecture given by Dr Eric Kwa, Secretary and CEO of the PNG Constitutional Law Reform Commission, at the Development Policy Centre on 15 November 2017. The full transcript of the speech is available hereThe podcast is available here.

A copy of the draft Organic Law on ICAC can be found here. Feedback on this legislation is welcomed; please email Dr Eric Kwa at ericlkwa@gmail.com by 31 January 2018.

Eric Kwa

Dr Kwa is the Secretary/CEO for the Papua New Guinea (PNG) Constitutional and Law Reform Commission and one of the country’s pre-eminent legal thinkers. A lawyer by profession with many years of experience in practice and research, Dr Kwa holds a PhD in Environmental Law from Auckland University, New Zealand. He also holds a Master of Laws with Honours (LLM (Hon)) from the University of Wollongong and a Law Degree with Honours (LLB (Hon)) from the University of Papua New Guinea. He was formerly an Associate Professor of Law and Dean of the University of Papua New Guinea Law School.

3 Comments

  • Frankly, it is interesting to read this article from a technical advisor from the department of Justice & Attorney General in the previous and current governments of PM Peter O’Neill touching on corruption. As a right person in the knowledge of laws governing law and order in PNG, it would be better if the discussion touches on the factors and limitations affecting the work of the current law enforcing and prosecution bodies.

    The ordinary citizens of PNG are made to believe that the Ombudsman Commission, Public prosecutor, the police and fraud squad, the Taskforce Sweep and courts are not able to effectively address corruption in PNG, especially white-collar corruption. How good is ICAC to address corruption?

    The technical advisor to government see corruption as the big elephant in the room, how about limited funding and extreme political interference into the work of the law enforcing and prosecution bodies, is this the scary thing in the room? Leave corruption; focus on improving the mechanics of these organizations to exercise their mandated roles and responsibilities without fear and favour, is this simple or difficult thing to do. As an advisor to government, that was your input into these.

    What we hear often is that, the above law enforcing and prosecution bodies are often under resourced to effectively carry out their mandated tasks, the team leader for Taskforce Sweep said that one time, Ombudsman Commission and Police fraud squad office expressed the same another time so what is the point of creating ICAC and not funding it. Or are we undermining the current bodies and raise hope into ICAC to address corruption.

    In the last Alotau Accord, the government included fighting corruption as one of the key development priorities that leads into setting up the Taskforce Sweep. In the current Alotau Accord, no mention of addressing corruption and in fact most PNGans were aware that corruption would not be part of the 2nd Alotau Accord. The ICAC was part of the last Alotau Accord. What was your advice to government then?

    However, ICAC does not have solution to corruption in PNG, the real problem is the underfunding and extreme interference from top down into the work of existing law enforcing and prosecution bodies that inhibits the work of addressing corruption in PNG. That is everyone’s knowledge and concern, how your government advisory roles incorporates measures to address the existing problem will go a long way to improve corruption then creating new agency and not funding it or, quickly dismantle it when it investigates those who created it just like Taskforce Sweep.

  • A good explanation of the problem, but the answer cannot be found within the most corrupt government in the Pacific and one of the most corrupt in the world. Nor should ICAC be introduced by this Government – there is a huge risk of fatal compromise, of which there are already signs. This government is continuing to institutionalise corruption for the benefit of its members.

    • The answers cannot come from outside either. What is needed is to identify the right people from within, build a company with people with same thinking to become a force of change.
      Removal of European apartheid regime in South Africa, for example, was a product of a ‘force of determination” by one man, Madiva, from within Africa itself. Removal of American racism by Martin Luther King Jr, again was an internal solution – someone made up his mind to die for it to save to Afro-Americans and Hispanics. Some good lessons to attend to.
      This is not to undermine outside help, however it does mean that there has to be an internal “will” to make change.

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