Jamaica's Prime Minister Andrew Holness Won't Be Charged By Jamaica's Anti-Corruption Body. Here's Why in Detail.

A day after news broke that Prime Minister Andrew Holness was referred for potential prosecution for possible breaches of the anti-corruption law and public procurement rules, Jamaica’s Integrity Commission has ruled that he won’t be charged.

In the ruling released Thursday, but which had been completed over a month ago on January 12, the anti-corruption body’s Director of Corruption Prosecution, Keisha Prince-Kameka, outlined that “with additional material being made available which investigations have failed to contradict or provide more evidence in support of the offences contemplated, no criminal charges can be laid.”

Background

The Commission’s investigation, which was triggered by an 18º North exposé in 2016, had initially concluded that Mr. Holness may have influenced the awarding of government contracts to Westcon Construction Limited, whose principals, Robert Garvin and Donovan Simpson, had been known to him for over 20 years and had business dealings with him. Mr. Garvin was a business associate of his.

Though the Commission revealed $57.5 million (US$776,643) worth of contracts that were awarded to Westcon mostly from the National Works Agency and the Ministry of Education, Youth and Information while Mr. Holness presided as minister, to make their case, the Commission relied heavily on two small contracts from the Social Development Commission (SDC) for works carried out in Mr. Holness’ constituency.

The first contract in 2007 was worth $1.45 million (US$21,002) for cleaning, bushing and trimming in his constituency of West Central St. Andrew. The second was for “Consultancy Services” in 2009 valued at $375,000 (US$4,248) to oversee work and projects in the constituency.

The SDC’s head Dr. Dwayne Vernon had told the Commission that “Westcon Construction was introduced to the SDC by way of letter from the MP.” The MP at the time was Mr. Holness.

In one letter to the SDC, Mr. Holness had indicated that Westcon Construction was to be paid for works completed in the “Christmas Work Programme 2007.” In another, he stated that Mr. Garvin was employed under the Constituency Development Fund (CDF) as the project manager for West Central St. Andrew.

Since the report had detailed that subsequent invoices for payment from Mr. Garvin had come under the name Westcon Construction Limited, Mr. Holness said in his response section of the report that Mr. Garvin may have chosen to opt for a contract of service using Westcon as the vehicle of engagement.

The Commission’s Director of Investigation, Kevon Stephenson, formed the view that the SDC “acted upon the instructions conveyed by the Most Hon. Andrew Holness” and made payments to Westcon Construction “without the utilisation of the mandatory formal GOJ [Government of Jamaica] procurement procedures.”

The Commission further concluded that the Director of Investigation had reasonable grounds to believe that “the apparent influence of the Most Hon. Andrew Holness, which was brought to bear upon the contracts which were awarded by the SDC to Westcon Construction Limited, prima facie, gave rise to a conflict of interest, on the part of the Most Hon. Andrew Holness.”

As a result, the report of the investigation alleged that Mr. Holness breached Section 36 of the Public Procurement Regulations 2008, in that he was involved in the procurement process, having issued instructions authorizing payments to a contractor with whom he had business dealings and didn’t declare this conflict of interest to the head of the entity.

He was subsequently referred to the Commission’s Director of Corruption Prosecution with respect to breaches of the Contractor General Act, the Public Sector Procurement Regulations 2008, the Corruption (Prevention) Act and/or any other applicable law.

The Ruling In Detail

However, in her ruling put out on Thursday, Mrs. Prince-Kameka, the Director of Corruption Prosecution outlined that, based on a Judge’s Rules Interview conducted on September 26, 2022, Mr. Holness provided further clarification.

He said while as Minister of Education he’d never directed any public entity to award a contract to any company, inclusive of Westcon, “I have, however, made recommendations as Member of Parliament to Ministries, Departments and Agencies (MDAs) for contractors to be considered in the appropriate procurement process which was customary.”

When shown the letter dated December 20, 2007, he said he had submitted a list of projects to the SDC and beneficiaries of supervisors to do bushing works and had gotten a phone call saying that the SDC was running late with payments as they didn’t have time to prepare all the cheques for the supervisors for work which was already complete.

He said the SDC requested that he submit the name of one entity who was registered with the National Contracts Commission (NCC) to receive payment. And at the time, the only person or entity that was NCC-registered and had an up-to-date Tax Compliance Certificate that he could trust to receive payment and subsequently pay the supervisors in time for Christmas was Westcon Construction. He laid out:

Westcon was not the contractor for works, but work would have been done by the individuals previously recommended. It is important to note that there was a worksheet submitted with the individual jobs and personnel to complete the work Division by Division. My letter asked, having regard to the circumstances of the urgency of time that Westcon be substituted for the supervisors.

When asked about the need to have disclosed the relationship with Mr. Garvin or Westcon Construction, he admitted that he didn’t make that disclosure:

I do not think there needed to be any disclosure. It would have been known by the SDC office, that Mr. Garvin worked in my constituency as a project officer and organizer and would have worked with the SDC on projects for my constituency. Outside of the context of the emergency request by the SDC or if they were not aware I could see a conflict of interest concern. However, since it was the SDC who asked me to recommend someone given the emergency situation which required urgent payment, and the fact that they would have already been aware that Mr. Garvin worked in my constituency, then a conflict would not arise.

In the investigation report, Mr. Holness had said MPs were advised by the Constituency Development Fund office to recommend whom they wished to be the Liaison Officer / Project Manager for their constituency. From the September 2022 interview he had said as far as Mr. Garvin’s employment with the CDF as a project officer is concerned:

There would be no conflict of interest as the requirement would be to have a project officer in whom the MP would have confidence to administer the affairs of the constituency.

Mrs. Prince-Kameka also referred to the February 15, 2022 statement of Executive Director of the SDC Dr. Dwayne Vernon, which, she said, supported the assertions made by Mr. Holness.

In his statement, Dr. Vernon laid out:

In 2009, when I was the acting Executive Director, I am not aware of any Procurement Committee at the time in relation to the Constituency Development Fund (CDF) contractual arrangements, as the procurement standards/guidelines would have been different. There was an internal procurement unit responsible for our internal procedures matters, not relating to CDF arrangements…At the time, for me, the project would have been underway and there would have been no need for disclosures.

Based on the fact that no material had been provided to contradict the accounts referenced, and the only guidelines pertaining to the operations of the CDF being the Revised Constituency Development Fund Operational Procedures from 2019, Mrs. Prince-Kameka concluded that the allegations regarding breaches of “Section 36 of the Public Sector Procurement Regulations 2008, could no longer be substantiated as there is no evidence of the alleged interference with the procurement process as defined.”

With regard to the offense of misconduct in a public office, Mrs. Prince-Kameka said “more is required to establish this element of the offense.” Based on case law, she said, a public officer commits this kind of an offense, if acting as such, “the person willfully neglected to perform his public duty and, or willfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder without reasonable excuse or justification.

She concluded that, “In the absence of such evidence, no consideration of the gravity of neglect being injurious to the public interest arises. Accordingly, a prosecution favoring this offence on the evidence provided cannot be undertaken.”

Bungling By The Integrity Commision & The Prime Minister’s Response:

Given that the ruling by the Director of Corruption Prosecution had been completed over a month earlier on January 12th there was an outcry from the public about how the release of the two reports was handled. 18⁰ North had asked the Commission why the two reports - the investigation and the ruling - couldn't have been put out together.

The Commission released a statement on Friday saying the result of the investigation had to be put out first based on a statutory requirement. “Publication of the Ruling could not be done before or simultaneously with the report. It had to await the tabling of report. That is the law crafted by Parliament.”

The Commission stated having received confirmation that the report was tabled on the 15th, instructions were given on the same day for the ruling to be published. In its statement, it didn’t go into detail about why then the ruling was subsequently released on February 16.

Upon his return to Jamaica having attended a CARICOM summit in The Bahamas, Prime Minister Holness said, “I think that there’s now an opportunity to make the legislation more precise, to make it more practical and to refocus it on where the problems really exist.”

The minister with responsibility for information, Robert Morgan, also hinted at a potential legal challenge when contacted about the Commission’s handling of the release of the report and the subsequent ruling, telling 18º North on Friday “This is now clearly a legal matter.”

Reached by phone, Mr. Garvin either hung up or the phone disconnected after 18º North asked him for a response to the ruling. A subsequent call to his phone was not answered.

####

Disclaimer: Mr. Holness and Mr. Garvin had sued this reporter and 18º North over the 2016 exposé. The lawsuit with Mr. Holness was resolved confidentially in 2017, and we maintain the right to rebroadcast after successfully making a case that the court should overturn the injunction. The case with Mr. Garvin is still pending and is set for trial in 2024.

*The exchange value for the total value of all contracts has been corrected to be US$776,643. It now reflects the average of the average annual sell rates from the Bank of Jamaica’s website for each of the years 2006-2009, the years over which the contracts were issued, and not between 2007-2016 as stated previously. Including the exchange rates up to 2016 was based on an entry in the body of the Integrity Commission’s report, but on closer examination of a table in the report, the contract dates are between 2006 to 2009.

The other exchange rates used are based on the annual average selling exchange rate on the Bank of Jamaica’s website of J$69.04:US$1 for 2007 and J$88.28:US$1 for 2009, the years when both SDC contracts were issued.