Can ICAC Overcome the Fate of Task Force Sweep? Independent Commission Against Corruption

The establishment of the Independent Commission Against Corruption (ICAC) in Papua New Guinea (PNG) marks a significant milestone in the nation's fight against corruption. With the recent arrival of highly qualified and experienced ICAC Commissioners, the government, led by Prime Minister James Marape, has demonstrated its commitment to addressing the devastating impact of corruption on PNG's progress. 

This article examines the pros and cons of ICAC and compares it to the Investigative Task Force Sweep Team, headed by Sam Koim during the leadership of former Prime Minister Peter O'Neill between 2012 and 2019.

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Pros of ICAC and its Role in Fighting Corruption

1. Strengthening Accountability: ICAC provides an independent and dedicated institution solely focused on combating corruption. By investigating and prosecuting corruption cases, it enhances accountability within government bodies and public institutions.

2. Expertise and Experience: The appointment of highly qualified Commissioners, such as Andrew Forbes, Daniel Baulch, and Graham Gill, brings extensive legal, law enforcement, and prevention expertise to ICAC. Their diverse backgrounds enhance the commission's capabilities and effectiveness.

3. Impartial Selection: The involvement of Transparency International in the selection process ensures impartiality and alleviates concerns about foreign nationals leading ICAC. The inclusion of various stakeholders in the ICAC Appointments Committee also promotes comprehensive oversight.

4. Complementary Legislation: ICAC is supported by the Whistle Blowers' Act (2020) and the Proceeds of Crime Act (2022), providing a robust legal framework for combating corruption. The combination of these laws strengthens ICAC's ability to investigate and prosecute corrupt individuals.

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Cons of ICAC and Potential Challenges

1. Overlapping Mandates: While ICAC's establishment is a positive step, it may lead to confusion and duplication of efforts, particularly with existing anti-corruption agencies such as the Ombudsman Commission and the Police. Clear coordination and collaboration mechanisms should be established to ensure a streamlined approach.

2. Limited Resources: ICAC's effectiveness depends on adequate resources, both financial and human. Without sufficient funding and personnel, the commission may struggle to handle the high volume of corruption cases, especially in the political leadership domain, and fulfil its mandate effectively.

3. Political Interference: Despite ICAC's independence, political interference and influence remain a concern. It is crucial to safeguard the commission's autonomy and shield it from political pressures to ensure unbiased investigations and prosecutions.

4. Public Engagement and Awareness: While ICAC provides a platform for reporting corruption cases, the success of the commission depends on public participation. Creating awareness about ICAC's role, encouraging whistleblowing, and ensuring protection for those who report corruption will be essential in mobilizing public support.

Comparison with the Task Force Sweep Team

During Prime Minister Peter O'Neill's leadership, the Investigative Task Force Sweep (ITFS), headed by Sam Koim, played a crucial role in addressing corruption. Some points of comparison between the two initiatives include:

1. Independence: ICAC is established as a permanent and independent institution, ensuring continuity and long-term commitment to fighting corruption. In contrast, the Task Force Sweep Team was a temporary task force, which limited its sustainability and impact.

2. Legal Framework: ICAC operates under the ICAC Act (2020), providing a clear legal framework for its operations. The Task Force Sweep Team lacked dedicated legislation, which could have limited its authority, independence and accountability.

3. Powers and Resources: ICAC is endowed with extensive powers of investigation and prosecution, supported by appropriate resources. The Task Force Sweep Team faced challenges in obtaining necessary resources and experienced limitations in its powers, hindering its effectiveness.

4. Institutionalisation: ICAC's establishment signifies a systemic approach to combat corruption, focusing on preventive measures, investigations, and prosecutions. The Task Force Sweep Team, while successful in some cases, lacked the institutionalization required for sustained and comprehensive anti-corruption efforts.

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Summary (Independent Commission Against Corruption)

The establishment of the Independent Commission Against Corruption (ICAC) in Papua New Guinea marks a significant step forward in the fight against corruption. While there are challenges and potential areas for improvement, the involvement of highly qualified Commissioners, the support of complementary legislation, and the commitment of the government underscore the importance of ICAC in addressing corruption. 

Comparing it to the Task Force Sweep Team highlights the advantages of a permanent and independent institution with a dedicated legal framework. 

To ensure the success of ICAC, continued public engagement, sufficient resources, and safeguarding its independence from political interference are vital. 

With a collective effort and unwavering commitment, ICAC can play a crucial role in eradicating corruption and fostering a more prosperous future for Papua New Guinea.

Corruption in PNG: Addressing Systematic Corruption in PNG

Papua New Guinea (PNG) is a resource-rich country, with vast mineral and oil reserves, but it is also notorious for its high levels of corruption. According to the United Nations Development Programme (UNDP), corruption costs PNG's economy over 10% of its GDP, or about US$1.5 billion per year. 

Corruption in PNG undermines public trust in government, distorts markets, and erodes the rule of law, leading to political instability, economic underperformance and unhappy people.

Political will lacking - ICAC & NACD

The PNG government has taken some steps to address corruption in recent years, including the establishment of the Independent Commission Against Corruption (ICAC) and the National Anti-Corruption Directorate (NACD). 

However, progress has been slow, and many argue that these institutions lack independence, resources, and political support to effectively investigate and prosecute corruption cases. 

As a result, PNG continues to rank low in Transparency International's Corruption Perceptions Index, currently ranking 130th out of 180 countries in 2023.

Systemic vs. Systematic Corruption in PNG

Corruption in PNG can be characterised as both systemic and systematic. 

• Systemic Corruption: Systemic corruption refers to the deep-rooted and widespread nature of corruption in PNG's society and institutions, where corruption is embedded in social norms, practices, and networks. For example, as highlighted in a recent Devpolicy article, everyday corruption is common in PNG, where people offer bribes to avoid fines or gain access to public services. In many cases, people do not see this as wrongdoing but rather as a way of life, reflecting the lack of trust and confidence in public institutions.

• Systematic Corruption: On the other hand, systematic corruption refers to the organised and deliberate nature of corruption in PNG, where corruption is used as a tool to gain and maintain power, influence decisions, and extract rents from public resources. This type of corruption involves collusion between politicians, bureaucrats, and business elites, who use their positions to engage in illegal activities such as embezzlement, kickbacks, and nepotism. As pointed out in a PNG Attitude article, this form of corruption has been evident in recent high-profile cases, such as the UBS loan scandal, where politicians and public officials were accused of receiving bribes in exchange for a government loan.

Balanced Argument on Corruption in PNG

The issue of corruption in PNG is complex and multifaceted, and requires a comprehensive approach that addresses both the systemic and systematic aspects of corruption. 

While the establishment of ICAC and NACD is a positive step, these institutions need to be adequately resourced and empowered to carry out their mandates effectively. 

Importantly, political will and leadership are crucial in creating an environment where corruption is not tolerated and where institutions can operate independently and without fear of retribution.

At the same time, addressing systemic corruption in PNG requires a shift in mindset and cultural norms, where people are educated and encouraged to view corruption as a harmful and unacceptable practice. 

As highlighted in the Devpolicy article, tackling everyday corruption in PNG requires not only punitive measures but also a focus on promoting transparency, accountability, and citizen participation in decision-making processes. This requires a long-term and sustained effort to build trust in institutions and to create a culture of integrity and ethical behaviour.

Addressing systematic corruption in PNG

Finally, addressing systematic corruption in PNG requires addressing the underlying political and economic structures that enable and perpetuate corruption. 

This involves promoting transparency and accountability in public procurement processes, strengthening regulatory frameworks, and reducing the concentration of power and resources in the hands of a few elites. 

As argued in the PNG Attitude article (linked above), addressing systematic corruption requires a fundamental shift in the way PNG's political and economic systems operate, and this will require strong and sustained political leadership and a commitment to reform.

Conclusion

Corruption in PNG is a significant challenge that requires a multifaceted and sustained effort to address. The establishment of institutions such as ICAC and NACD is a positive step, but more needs to be done to ensure they are adequately resourced and empowered to carry out their mandates effectively. 

To make progress in combating corruption, PNG must also address the underlying political and economic structures that enable corruption to persist. This involves:

• promoting transparency and accountability in public procurement processes, 
• strengthening regulatory frameworks, and
• reducing the concentration of power and resources in the hands of a few elites.

All in all, the fight against corruption in PNG requires strong and sustained political leadership and a commitment to reform. It will not be an easy or quick process, but it is essential for the future prosperity and stability of the country.

INVESTIGATION TASK-FORCE SWEEP UPDATE: PNG Government Must Release K12 million Allocated To ITFS In 2014 and 2015

It is in the public interest to disclose the progress report of Investigation Task Force Sweep (ITFS) investigations. This report contains ITFS’ accomplishments and challenges from August 2011 to present. A copy of this report had been submitted to the Prime Minister and all other respective authorities on 20th October 2015.

The years 2014 and 2015 had been difficult years for ITFS. ITFS faced an onslaught of operational interference arising out of its decision to mount a case against the Prime Minister and other high profile persons in relation to the allegations of official corruption and others.

Complaints and Pending Investigations

The acute financial constraints seriously impaired all fresh and pending investigations. ITFS registered more than 350 cases of fraud, money laundering and all other forms of corruption. ITFS received numerous allegations of inflated contracts and commission structuring recently. ITFS could not progress any of these fresh investigations due to the predicament ITFS is currently subjected to. In due time, should the government allocate funding, we will progress them and inform the respective complainants.

Prosecution Update

ITFS initiated a total of 93 criminal cases. Of this, 12 convictions were secured so far. Apart from the ones serving jail term as listed below, there are cases pending execution of arrest warrants, committal, trial, and verdict on conviction and sentencing. There are also cases that were forestalled by judicial review proceedings in the civil courts. A number of cases had been struck out and/or dismissed as well. ITFS maintains a close track of these cases and facilitates the attendance of witnesses for the respective hearings of these cases.

The Successful Prosecutions so far are listed in the table below.

Case No. Prisoner Offences Committed Status Update

1. Paul Tiensten, Former MP & Minister for National Planning Directed payment of K10m to Travel Air Ltd. Convicted and Sentenced to 9 years Imprisonment with Hard Labour. Serving jail term.

2. Paul Tiensten, Former MP & Minister for National Planning Directed payment of K3.4m to Tol Port Services Ltd. Convicted and sentenced to 4 years imprisonment with hard labour (to be served together with 9 years from 1). Serving jail term.

3. Francis Potape, Member for Komo Magarima Dishonestly approved and received JDP&BPC sitting allowances of K330,000 Convicted and Sentenced to 2 ½ Years with hard labour. Prisoner released by Supreme Court on bail after serving 7 months upon successful appeal. National Court retrial pending. His two co-accused cases are pending trial whilst other co-accused are yet to be arrested and charged.

4. Jabri Kalub Zebedee, Businessman For defrauding K4.75m from the State. Convicted and sentenced to 11 years imprisonment. Serving jail term.

5. Benjamin Salatiel Tobung, Businessman Payment of K7.5m through a company called Metlik Plantations Ltd. Co-accused to Eremas Wartoto. Convicted and sentenced to 6 years imprisonment. Serving Jail term whilst his co-accused case is still pending trial.

6. Charles Aopi, Former Chief Financial Officer of National Parliament Defrauded K150,000 from National Parliament. Convicted and Sentenced to 4 Years Imprisonment. Serving jail term.

7. Newe Lepson, Parliament Staff Co-accused of Aopi Convicted and Sentenced to 3 years imprisonment. Serving jail term.

8. David Kumalau Pondros, Consultant Defrauded K400,000 for a purported jetty project Convicted and Sentenced to 5 years imprisonment. Serving Jail term. He has another K6m case pending trial. 

9. Otto Wangilen, Public Servant Co-accused of David Pondros in the K400,000 fraud. Convicted and Sentenced to 5 years imprisonment. Serving Jail term.

10. Peter Tokunai, Businessman Defrauded K1.5m for Malaguna Catholic Church. Convicted and sentenced to 7 years imprisonment. Serving jail term.

11. Mark Maludu, Senior Public Servant, NDoH For defrauding more than K51,000 Convicted and suspended sentence.

12. Benjamin Selep, Area Medical Store Manager, NDoH Defrauding area medical store Convicted and suspended sentence.

The Office of the Public Prosecutor is commended for the successful prosecutions.

Referrals to Ombudsman Commission for Leadership Actions

A total of fourteen (14) leaders implicated for breach of the leadership code were referred to the Ombudsman Commission for further investigation and action.

Administrative Actions

A total of 28 public servants were recommended for Disciplinary Actions. Most of them were suspended and dismissed as a consequence of our investigations.

Tax Recovery Actions

ITFS has, using the tax powers, raised a total of K242,035,10.00. Of these, K25,546,151.00 had already been paid to Internal Revenue Commission. IRC Debt collection division is working on collecting the outstanding balance owed under the tax assessments after the taxpayer objections are duly accorded.

Proceeds of Crime Recovery

Proceeds of Crime Recovery on ITFS instigated cases stands at K8.3 million. A number of assets and bank accounts had been frozen by Australian Authorities relating to ITFS cases. There is a potential to recover more than this amount once criminal prosecutions are successfully concluded.

The Paraka Related Cases

Most of the cases are being forestalled by various interlocutory and appeal proceedings filed by the various defendants arrested in connection with the investigations into Paul Paraka Lawyers’ alleged illegal settlement of legal bills by the State.

Cases against PM

The cases concerning and relating to the yet-to-be executed arrest warrant against the Prime Minister and number of other senior politicians are currently before the Civil National and Supreme Courts where the criminal warrant is being challenged. The Courts have issued a stay on the execution of the warrants. The hearings are scheduled for this month.

ITFS Politically Compromised?

A number of public statements were made branding ITFS and its members as ‘politically compromised or rogue’, which was one of the reasons used to disband the ITFS team.

The allegations were tested in court, from the District Court all the way to the Supreme Court. In most of those instances, the Courts removed the ‘rogue’ tag placed on ITFS members and placed it on the accusers. For example:

• In OS No. 444 of 2014, the National Court, on a cursory appreciation of the facts, found that the disbanding of ITFS was improper and not in the best interest of the country hence issued an interim stay on the NEC Decision that purported to disband ITFS.

• In OS No. 115 of 2014, The National Court found that “There is in fact no evidence that the current criminal investigations of the plaintiffs are the work of rogue policemen or that the investigations are politically-motivated as described by the Prime Minister in his affidavit.”

• In SCA 87 of 2015, the Supreme Court held that Messrs. Matthew Damaru and Timothy Gitua “maintain strict business discipline as case officers” whereas the Police Commissioner finds comfort in cooperating and collaborating with the Finance Minister James Marape and Prime Minister Peter O’Neill.

Total Funding since 12th August 2011

ITFS received a total of K15.5 million from the Government since its establishment on 12th August 2011 by way of a NEC Decision. That is: - 2011 – K5.8m, 2012 – K3.0m and 2013 – K6.5m.

ITFS was allocated K7 million in 2014 followed by K5 million in 2015 through the Annual Budget. Although Parliament approved those funds, our attempts to draw-down were ignored. ITFS therefore remained defunded for the last two years. In the face of extreme financial drawbacks, ITFS continued to function.

In the 2016 Budget which was passed by Parliament on 3 November 2015, ITFS was allocated no funds.

It is also interesting to note that National Anti-Corruption Task-Force overseeing the establishments of ICAC as well as ICAC itself have no funding allocation in the 2016 National Budget. This body was allocated K20 million in 2013, K20 million in 2014 and K5 million in 2015.

Conclusion

For the K15.5 million that the Government provided to ITFS since its establishment, ITFS had arrested and charged 93 suspects, secured 12 convictions with many more to follow, recovered more than K242 million in tax recovery, proceeds of crime recoveries of funds and assets including restraining of funds and assets in Australia relating to ITFS initiated matters, and recommended many public officials to the Ombudsman Commission and Government Departments (including DPM) for leadership and administrative actions respectively.

ITFS was defunded for the fiscal years 2014 and 2015 despite a National Court Order allowing it to continue its operations. It was very difficult to do much under the circumstances.

We are still following up with the Government for the provision of funds so that we could continue with our operations and complete some of these pending investigations.

Authorized for Release

Sam Koim, LLB[Hons]

Chairman