As Premier Andrew Fahie ushered the Integrity in Public Life Act through the House of Assembly in December, he insisted that no one had forced his government to bring forward that bill — or a suite of related measures.
Hinting that the move precluded any pressure from the ongoing Commission of Inquiry, he said it was motivated by his government deciding “on our own initiative — I repeat, on our own initiative” — to enshrine the principles of good governance.
Mr. Fahie didn’t mention that the government of the Turks and Caicos Islands also passed a suite of good-governance legislation shortly before the release of that territory’s Commission of Inquiry report in 2009.
“It’s obviously a bit of a delaying tactic in some ways, if you’re a bit cynical,” said Dr. Peter Clegg, a professor in politics and international relations at the University of the West of England in Bristol, who specialises in relations between the United Kingdom and its overseas territories. “It’s interesting; I know that the government is trying to sort of promote itself as bringing about some changes. And there’s definitely a sort of a [public relations] war going on.”
Ultimately, the TCI good-governance legislation wasn’t enough to save the career of then-Premier Michael Misick, who resigned in March 2009 after an interim report from Commissioner Sir Robin Auld found a “high probability of systemic corruption and/or other serious dishonesty” in that territory.
The final report, issued in July 2009, led to the partial suspension of the 2006 TCI Constitution and the temporary introduction of direct UK rule, as well as the ongoing prosecution of Mr. Misick and other government ministers.
Here in the Virgin Islands, the COI has not alleged criminality, but many residents have speculated on whether the UK will suspend the Constitution or recommend prosecutions after Commissioner Sir Gary Hickinbottom submits his twice-delayed report next month.
Either way, TCI history may provide clues of what’s to come.
First TCI inquiry
The 2008-2009 TCI inquiry was the second held in that territory in a quarter-century. The UK first called a COI there in 1986, which resulted in the partial suspension of elected government from 1986 to 1988.
The earlier probe came on the heels of the arrests of three government officials on drug-trafficking charges. Two of the accused were allegedly caught on video in Miami accepting thousands of dollars in bribes from undercover informants for the United States Drug Enforcement Agency.
One of them was former TCI Chief Minister Norman Saunders, who was convicted in 1985 by a US federal jury of six counts of conspiring to travel to promote an illegal drug transaction, though he was acquitted of conspiracy to import and distribute cocaine.
Mr. Saunders was sentenced to eight years in prison and fined $50,000, according to news reports. In April 1986, the United Kingdom called for a Commission of Inquiry in the TCI led by Queen’s Counsel Sir Louis Blom-Cooper.
In addressing the TCI’s role in drug trafficking, Sir Louis later wrote, “The evidence would suggest that the beneficiaries are a few powerful men.”
However, he added that the COI had been told that “the profits filtered down among the people generally, and the fact may account in part for the equivocal response from the people as a whole” to Mr. Saunders’ conviction.
After serving time in prison, the former chief minister returned to TCI. In 1995, though he was disowned by his former party, he was elected to the legislature as an independent candidate by six votes.
In the inquiry, Sir Louis investigated an alleged arson of a public building, alleged corruption in the Public Works Department, and “related matters.”
In 1986, he announced in his final report that he had “not found corruption,” but that the time had come “to disperse the cloud that hangs like a brooding omnipresence in a Grand Turkan sky.”
To that end, he recommended partial suspension of the constitution, with rule by the governor and an advisory council, with the then-Legislative Council remaining in place. He did not recommend any further investigations into criminality among public officials.
In 1988, the UK restored ministerial government, and the TCI adopted a new constitution.
Second TCI inquiry
The years between the TCI’s two inquiries were characterised by rapid economic development in that territory and elsewhere in the Caribbean.
Mr. Misick — who served as chief minister starting in 2004 — was widely credited for some of this progress, in part because of his role courting wealthy foreign developers and celebrity visitors.
However, by 2009, the global economic crisis had ushered in rising public debt in the territory, and news reports of ministers’ jet-setting lifestyles had started to look more and more out of step, Sir Robin wrote in his 266-page report issued in August 2009.
He also announced that he had found “a high probability of systemic corruption in government and the legislature and among public officers in the Turks and Caicos Islands in recent years.”
According to the report, this corruption mainly involved “bribery by overseas developers and other investors of ministers and/or public officers, so as to secure Crown land on favourable terms.”
The report also determined, among other findings, that in recent years there had been “serious deterioration — from an already low level — in the territory’s systems of governance and public financial management and control.”
Furthermore, it found “systemic weaknesses in legislation, regulation and public administration in the territory.”
Consequently, the report called for the partial suspension of the 2006 Constitution and recommended interim direct rule from Westminster, acting through then-Governor Gordon Wetherell.
It further called for the improvement of standards of integrity in public life and the reform of the system for disposal of Crown land. Additionally, it called for changes to the 2006 Constitution, which was ultimately amended in several areas (see sidebar on page 22).
The report also called for the temporary suspension of trial by jury and made provisions for a special criminal process, as well as the civil recovery of assets arising out of any criminal investigations.
Beyond recommending systemic changes, the report recommended criminal investigations of certain individuals, including Mr. Misick and four other elected members of the TCI House of Assembly.
The report alleged that Mr. Misick and four of his ministers may have committed bribery and profited from the improper sale of Crown land.
All the ministers named in the report were eventually charged, according to TCI news reports. They denied wrongdoing, but the justice process hasn’t been easy or short.
Mr. Misick left the TCI, and he was arrested in 2012 by police in Brazil and later extradited back to the territory. Some of his assets, including land holdings and bank accounts, were frozen in June 2012 as part of the corruption investigations.
However, the proceedings have faced delays including Covid-19 and the death in 2021 of the judge presiding over Mr. Misick’s trial.
Another elected member named in the report, former government minister Lillian Boyce, pleaded guilty in January 2021 to misconduct in a public office and was handed a six-month suspended sentence and fined $1 million, the Turks and Caicos Sun reported in June.
In all, the criminal justice proceedings related to the TCI inquiry “have been going on for five, six, seven years,” Dr. Clegg said. “And that’s a question in terms of lessons learned for the prosecutors and other individuals coming out of the commission, requiring the BVI to find a process which just doesn’t take so long before credibility is lost.”
So far, the VI inquiry hasn’t published any evidence of the type of alleged criminality that led to the 1985 TCI drug-trafficking convictions or to the prosecution of Mr. Misick and others in the 2010s.
However, other themes involving a perceived lack of transparency, accountability and good governance were present across all the inquiries.
“The similarities are quite stark,” Dr. Clegg said. “I came across the idea of venality in public life; the lack of checks and balances. There are rules in place, but they’re not being adhered to.”
The hot-button issues aired in the VI inquiry include elected officials’ lack of compliance with the Register of Interests Act, anomalies in the distribution of Covid-19 economic stimulus grants, and alleged mismanagement of projects under the current and former governments, among other issues related to good governance.
The COI hasn’t publicly probed the territory’s drug trade, but former Governor Gus Jaspert has said he called the investigation in part because of allegations linking some of the “highest holders of office” to cocaine trafficking and other organised crime in the territory.
And the COI was launched less than three months after the largest drug bust in the territory’s history, when some 2.3 tonnes of cocaine allegedly were found on a police officer’s property in Balsam Ghut.
That bust was followed by other high-profile drug arrests, some of which involved police officers and other government employees, and confidential police investigations have been ongoing in parallel with the public COI proceedings.
“Of course this is speculation, but it would seem strange if the COI report did not make some reference to possible corruption [or] criminal acts in relation to the recent higher levels of drug activity,” Dr. Clegg said.
The potential consequences of the COI have been matters of rampant speculation as the territory awaits the final report.
One big question is whether Sir Gary’s report will recommend suspending the VI Constitution and imposing UK direct rule as in the TCI — or suggest less draconian measures for improving transparency and governance.
Whichever form the report takes, Dr. Clegg said there would still need to be some mechanism in place for ensuring its recommendations are followed.
“I think there is a sort of range: a scale of the level of direct control that [the UK] can take, whether it’s suspending local democratic politics or allowing them to operate within a sort of a tighter structure led more strongly by the governor,” he said.
During the TCI inquiry in the 1980s, he noted, the UK government took direct control, but the legislature remained in place.
The TCI’s 2008-2009 inquiry went a step further: The HOA was temporarily replaced by an advisory council consisting of various public officers, including the deputy governor, attorney general and financial secretary, alongside a group of seven other TCI belongers appointed by the governor to advise him.
However, Dr. Clegg explained, the path ultimately chosen may depend on whether or not any problems uncovered by the VI report are truly systemic, rather than solely related to the actions of certain individuals.
“If it’s about individuals, and if it’s about the failures in sort of limited areas of the Constitution or the political process, it might not be a suspension of the Constitution,” he said. “But if it is more widespread, or if it’s more systematic — if it goes beyond just a few individuals — then I think the suspension of the Constitution is really the sort of the quickest and easiest way of making the changes.”
The language of the most recent TCI report, he added, was “pretty strong in terms of not only the individual corruption, but also the systematic corruption. It didn’t give the British government much of an option but to take control and go further with investigations [related to] Crown land.”
But Dr. Clegg said it is important to understand that there are different processes at work here than in the TCI.
“It’s almost as if the [VI] Commission of Inquiry is laying the foundations and providing a decently detailed overview of the situation, but not going as far as saying, ‘Well, we’ve reached a sort of a level of potential criminal responsibility,’” he said.
Though the commission is talking to “key individuals,” including politicians, the judiciary and the police, that may not mean it is collaborating closely with them, he added.
“I don’t think they have a particular agenda to sort of go beyond their remit,” Dr. Clegg said.
Economy and politics
Dr. Clegg also said it’s important to understand the differences in the political and economic climates in the TCI and VI.
“At the time of the commission of inquiry or just before, the Turks and Caicos Islands were in economic freefall, in part because of the global economic crash, but magnified by the increased levels of debt within the territory,” he said.
He added that this situation might be one of the reasons for how quickly the TCI inquiry was completed: Sir Robin took just six months to issue his first interim report. The VI inquiry, meanwhile, has stretched to over a year, and the report is now due in April after being twice delayed.
Announcing the most recent delay, Governor John Rankin blamed the “huge amount of documentation” supplied by the government’s Inquiry Response Unit — the same paperwork that Sir Gary had earlier called “disorganised and unhelpful.”
The delay is the second: The report was originally meant to be delivered to the governor last July, but Mr. Rankin granted an extension until January.
Dr. Clegg also suggested other possible reasons for differences in timeframe.
There was “a heightened sort of focus on getting this done quite quickly in the case of the Turks and Caicos Islands,” he said, pointing out that members of the UK’s Foreign Affairs Committee had visited TCI in March 2008 and reported that they “had been disturbed to encounter a ‘climate of fear’” in the territory.
That report helped spur on the TCI inquiry and created a sense of urgency to reach a conclusion, according to Dr. Clegg.
Furthermore, in the VI’s case, officials involved in the inquiry lawyered up to an extent that their TCI counterparts did not, he said, explaining that “those who have been asked to provide evidence in the VI have perhaps learned some lessons in terms of how they should be represented.”
The involvement of more legal teams can easily slow down proceedings, he said.
Whatever happens, the VI government may not be the only party called to account in the report.
Dr. Clegg said he also expects the report to address the extent to which the UK itself bears responsibility for its own role in ensuring good governance in its overseas territories.
He noted that the last “real reform” in Whitehall in regards to the OTs occurred more than 20 years ago, when the New Labour government issued its 1999 White Paper on the territories. The paper recommended modernising the constitutions of the OTs based on self-determination, mutual responsibilities, autonomy, and a pledge of UK help when needed. It also resulted in the granting of automatic British citizenship to OT citizens.
A UK coalition government issued another White Paper in 2012, but it didn’t include such comprehensive reforms, according to Dr. Clegg.
The TCI’s 2009 COI report, he added, barely addressed the UK’s role in governance, and “didn’t bring any fundamental change to the way in which the UK oversaw its territories.”
But the topic has come up often in the VI inquiry.
“Some of the questioning — from Sir Geoffrey Cox, [a lawyer representing the elected ministers], and others — was sort of hitting that point home quite significantly in terms of what are the UK government’s responsibilities?” Dr. Clegg said. “Are there good levels of communication with Whitehall? What is the level of investment and engagement of the British government in terms of providing support for the territories?”
However, if the commissioner does suggest reforms for the UK, they are unlikely to be dramatic or difficult to enact, he said.
“The British government would be very reluctant to change, because they have their red lines,” he said. “They’ve got to still be in a position where they can institute a commission of inquiry.”
That said, there might be some greater pressure on the British government to review how the territories are funded, which was another topic addressed in the 2019 Foreign Affairs Committee report. One recommendation from that report for filling the post-Brexit funding gap was enacting a permanent “development stimulus fund,” even for territories like the VI that no longer receive direct aid.
Dr. Clegg suggested that the COI report may answer some questions on how the UK could follow through on that offer.
“Will the British government step in?” he asked. “Will more funding be provided?”
The report is also likely to have an impact on the territory’s coming constitutional review and ongoing discussions about potentially seeking independence.
In the TCI, Dr. Clegg noted, public appetite for independence was seriously dampened by the 2008-2009 inquiry, even though Mr. Misick and other politicians often addressed the topic during the proceeding.
“They talked about independence in a sort of general way without providing much specific detail about how they can actually achieve that,” Dr. Clegg said. “But those sorts of attitudes or opinions weren’t shared by the general population in the Turks and Caicos Islands. And the [TCI] constitution that was agreed to in 2006 was pretty advanced, and the idea that it wasn’t too far, perhaps, before independence was considered. And then of course, the corruption happened and there was a much harsher constitution put in place.”
Here in the VI, Mr. Fahie and other members of his government have also hinted at a push for independence during the COI. But they have stopped short of making a clear call to sever ties with Britain. And Dr. Clegg said until the British government is confident that the OTs are ensuring proper accountability and transparency, he suspects the UK would be reluctant to provide any further autonomy short of full independence.
Therefore, he said, independence would require VI leaders to “educate and build confidence among the local population that if independence were an option, it would be a success. So at the moment, I don’t think there is that feeling that it would be a success.”