The Territory should have its constitution suspended
Elected government dissolved
Imposed direct rule from London
By Caribbean News Global
British Virgin Islands, (BVI) – British Virgin Islands Commission of Inquiry (COI) was launched in 2021 amid allegations of corruption and drug-running at the highest level on the islands.
In his report, Sir Gary Hickinbottom insisted the suspension of the powers of elected ministers “was not only warranted but essential if the abuses which I have identified are to be tackled and brought to an end”.
He said that successive BVI governments had “deliberately sought to avoid good governance by not putting processes in place and where such processes are in place bypassing them or ignoring them as and when they wish – which is regrettably often”.
Hickinbottom said he had no desire to frustrate the islands’ aspirations to self-determination as a modern democracy and recommended a year-long constitutional review to end opportunities for abuse and dishonesty in public office. “[But] unless the most urgent and drastic steps are taken, the current situation with the elected government deliberately ignoring the tenets of good governance will go on indefinitely.”
The following is summary recommendations “A” report of the Commissioner, Sir Gary Hickinbottom – publication date, Friday, 29 April 2022.
Recommendation A1: Temporary Partial Suspension of the Constitution
I recommend partial suspension of the Constitution, by the dissolution of the House of Assembly, the cessation of ministerial government and necessary consequential suspension of provisions of the Constitution, for an initial period of two years. During that period, I recommend direct rule by the Governor with such assistance as he considers appropriate, e.g. an Advisory Council to advise him on the formulation of policy and exercise of his functions.
That Council should reflect BVI civic society. In the period of the temporary constitutional arrangement, I also recommend and urge the Governor to draw primarily upon the pool of Public Service talent in the BVI to advise and aid him. In that period, the Governor should have all necessary executive powers, including the power to make any public appointments.
I recommend that there should be a return to ministerial government and an elected House of Assembly as soon as practicable; and the Governor should regularly, and at least every six months, take advice from any Advisory Council and/or from whom otherwise he considers appropriate as to the earliest practicable date on which such government can resume. The Governor shall publish a report on that issue at least once every six months.
Recommendation A2: Constitutional Review
I recommend that there be an early and speedy review of the Constitution, with the purpose of ensuring that abuses of the type I have identified do not recur, and establishing a Constitution that will enable the people of the BVI to meet their aspirations, including those in respect of self-government within the context of modern democracy. That will require a Constitution that is sufficiently robust to ensure adherence to the principles of good governance within government, but which also enables the progressive development of the BVI’s own political institutions.
The Constitutional Review I propose must be broad. Without restricting its ambit in any way, in my view it will need to address the following issues (amongst others):
(i) how the executive ministerial government can be held to account in the House of Assembly (e.g. by some different structure, number and/or configuration of seats) and/or in other ways;
(ii) whether the current constitutional pillars of governance are sufficient, and in any event how those independent institutions can be effective;
(iii) the powers that need to be reserved to the Governor, and how issues as to the exercise of devolved and reserved powers respectively, when they arise, are to be resolved;
(iv) a mechanism for the transfer of reserved powers to the devolved BVI Government in the future, without a further change to the Constitution being required;
(v) whether there should be a regime in relation to election expenses in the form of (e.g.) a requirement on election candidates to submit a breakdown of expenses including donations above a specific sum and/or a cap on such expenses;
(vi) whether statutory boards should be embedded in the Constitution and, if so, whether there should be a Statutory Boards Commission; and
(vii) whether the Speaker should continue to be a political appointment, or whether he or she, even if elected, should be independent of the political parties.
The Constitutional Review I propose should begin its work promptly, and conclude its work within a year or, if the Governor is persuaded to extend that time, in 18 months. As a return to elected Government will be difficult without constitutional reform, I regard the time for this Review to be concluded to be of the essence.
The Constitutional Review I propose should be established by the Governor. I am aware that a Constitutional Review Commission has recently been set up by the elected government. Its membership has recently been announced but, so far as I am aware, its terms of reference have not yet been determined. It has an initial period of two years to report. Whilst the extant Commission may be a basis for proceeding with the Constitutional Review I propose, whether its membership, terms of reference and timetable remain appropriate are matters that now need reconsideration.
Recommendation A3: Curtailment of Open-Ended Discretion
I recommend that there be a review of discretionary powers held by elected public officials (including Cabinet), with a view to removing the powers where they are unnecessary; or, where they are considered necessary, ensuring that they are exercised in accordance with clearly expressed and published guidelines. This review could be conducted by a senior BVI lawyer, or retired BVI/Eastern Caribbean judge.
Recommendation A4: Audits and Investigations
I recommend that the Auditor General, together with other independent persons or bodies instructed by her to assist, as soon as possible, initiate a review of all areas of government (including, but not restricted to those identified in this Report) and prepare a timetable for the audit of appropriate areas and report to the Governor accordingly. The Governor should ensure that sufficient resources are available to her to undertake the audits as they arise under that timetable.
The review will require the prioritisation, and possibly even the selection, of matters for audit. The Auditor General will be in the best position to make decisions as to such priorities and selections; but she may, for example, wish to prioritise areas which, in her view, may be more likely to give rise, in due course, to further steps (e.g. in relation to criminal investigation and/or steps to recover public money). The Auditor General should report to the Governor with the results of that review as soon as possible, and in any event within, say, two months.
I recommend that the Auditor General (assisted by other independent individuals as the Governor thinks fit) thereafter proceeds to perform the audits in accordance with that timetable, as agreed with the Governor. The Governor should ensure that sufficient resources are available to the Auditor General to enable her to perform these audits expeditiously. Once complete, the reports should as soon as practicable be published on the Auditor General’s website, unless the Governor directs that publication should not be made (e.g. in the public interest).
I recommend that the Governor establishes one or more independent unit(s) to conduct investigations into projects and/or individuals as identified by the unit(s), taking into account the information in this Report, the audits that have been and will be conducted by the Auditor General and Internal Audit Department and, of course, information and intelligence that the unit(s) themselves gather. The unit(s) should also be responsible for taking steps to secure money, land or other assets pending criminal and/or civil confiscation and/or recovery proceedings, if appropriate.
They should also be responsible for civil recovery. The Governor should ensure that sufficient resources are available to the unit(s) to enable them to perform their functions; and to the DPP’s Office (and any other enforcement office) in relation to subsequent steps taken in respect of criminal proceedings and steps to recover public money.
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