The Tribune

By FAY SIMMONS

jsimmons@tribunemedia.net

A CABINET minister yesterday said “the point is taken” after Opposition senators yesterday questioned whether legal reforms interfere with the Auditor General’s constitutional independence to safeguard taxpayer monies.

Senator Darren Henfield, the Opposition’s leader in the Senate, described the Public Finance Management Bill’s section ten as “abhorrent, regressive and authoritarian” because it seemingly diminishes the Auditor General’s powers and, in so doing, conflicts with section 136 in the Bahamian constitution.

The latter sets out the Auditor General’s ability “to have access to all books, records, returns and reports” relating to the expenditure and use of the Bahamian people’s money, and Mr Henfield said: “It appears to me that, as might be noted in section ten of this Bill, which addresses the role of the Auditor General that there is an attempt to roll back the powers of the Auditor General.

“Any law which seeks to derogate from, or limit or fetter the scope of the powers of the Auditor General, reposed in that office by Article 136 of the constitution, is abhorrent, regressive and authoritarian and cannot - must not - be supported. The Auditor General of The Bahamas must be ‘free from direction or interference from the legislature or the executive’.

“There must not even be the appearance of such interference....... It is our view on this side that we ought to be seeking to strengthen and increase the powers of the Auditor General, not diminish them. The framers of our constitution clearly attempt to give the Auditor General autonomy and independence from the legislature and the executive by according the same terms of service as members of the judiciary, and making the holder of that office ‘irremovable except in accordance with judicial procedure’.”

Mr Henfield said the Public Finance Management Bill’s section ten “appears to suggest that the Auditor General might be excluded by simply writing him out of an agreement made by a minister to do so. This particular section seems to give a minister the power to exclude the Auditor General from looking into government expenditure before this Act comes into force and after it comes into force.

“Can you imagine that? A minister has to get a Government Business Enterprise to agree to permit the Auditor General to examine the use of public funds,” he added. “It is my considered view that any step taken to limit, impede or reduce the independence of the office of the Auditor General is not acceptable.... The Auditor General can look into any enterprise that has access to government finances.”

In response, Michael Halkitis, minister of economic affairs, agreed that the Auditor General’s powers should not be diminished but said the Bill’s wording reflects the constitution’s language.

He added: “Of course, we do agree that there should be no diminution of the powers of the Auditor General. I believe that the legislation requiring there to be an agreement to audit all of these [enterprises] is just because the constitution is so specific in terms of listing the entities that the Auditor General can audit, and does not specifically include these.

“You need a mechanism whereby the Auditor General can capture all of those other things which are not explicitly stated here. I think that is perhaps the intention of the framers, and perhaps we need to look at it to make it lucidly clear that I agree that the Auditor General should not be, you know, those things when you’re talking about public funds being extended, or chipped within the purview of the Auditor General.

“The Auditor General should have a role to audit, and to be able to ensure that public funds wherever they are, whatever form, are accounted for. So, I think that is the intention. But the point is taken.”

Mr Halkitis also responded to assertions by Senator Michaela Barnett Ellis that the Government knowingly, and deliberately, broke the law by not publishing beneficial ownership information on contract awardees as required by the existing Public Procurement Act.

He said: “I want to address the issue of the Government knowingly and deliberately breaking the law, specifically as it relates to Section 61 of the 2021 legislation that we’re repealing, which calls for the publication of the beneficial ownership of contract awardees, people who are awarded contracts.

“And Senator Ellis went on to say that similar provisions for publication of the beneficial ownership are in the 2023 legislation. And I think the question [is] how can the Government be trusted to abide by section 57 of the current legislation that calls for publication of benefits and ownership if we deliberately and knowingly” ignored it

“So the bottom line is that it has been brought up extensively that the current administration broke the law by not publishing the beneficial ownership as is required by section 61 of the existing Act,” Mr Halkitis added. “And I want to say this to make a distinction between…firstly, we should not look at Section 61 of the Act in isolation.

“When you say the Government, this administration, is not abiding by the legislation, section 61 of the current Act calls for publication. But I would like to say that part of the difficulty is that in enacting the entire Act, there were extensive preparation and provisions that needed to be made.”

Mr Halkitis said public officials had to be trained to implement the procurement laws, adding: “As to the Public Procurement Act, understanding that there is certain infrastructure that has to be put in place for it to be effective, and that it’s not a deliberate and knowing repudiation of the law. And so, training and application of the Public Procurement Act is an ongoing assignment.”

Mr Halkitis also responded to Senator Ellis questioning why the Fiscal Strategy Report will be released at the same time as the annual Budget if it is a strategy intended to inform the latter.

He said: “The view, proffered by the technical staff, is that if you have a Fiscal Strategy Report that’s due in November, it means you have to start working on it in October and September using information that is available in August. And so you’re using information to prepare, report and form something that starts again in July 1. So the information might be a year old. That’s their view.

“And there’s another view in terms of parliamentary time, of course, finances and accounting for public finance is the most important... I think there is a view that we need to be able to use parliamentary time to not be totally impugned with financial issues but to be able to help them streamline it as well.”