Enough is enough…It is time for the courts to address these matters
I find the earlier pronouncements of Drs. Roger Luncheon and Ashni Singh and now Mr. Winston Brassington that National Industrial and Commercial Investments Limited (NICIL) is a private company with the legal right to withhold public moneys annoying, self-serving, misinformed and mischievous. It is sad, and even dangerous, that individuals with the power to make major decisions over the resources of the country and the lives of its people can be so deficient in their knowledge and reckless in their actions.
Dr. Luncheon wrongly informed the media that there are “20-something articles that underpin the creation of NICIL and none of them says that money from NICIL has to be put in the Consolidated Fund.” Mr. Brassington adds his share of vacuity with his pronouncement that “proper accounting requirements dictate that money from the sale of government assets should first be placed in the company account, provided it can adequately discharge all of its liabilities.” In my 42years as a professional, I have never heard anything so absurd and facile.
In fact, NICIL’s Articles of Continuance comprise nine articles, and it operates under, and is classified by the Companies Act 1991 as a “Government Company”. The Act imposes on NICIL the following obligations over and above those imposed on companies generally:
1. That sections 48 and 49 of the Public Corporations Act dealing with accounts and audits apply;
2. NICIL is required to submit to the Minister of Finance an account of its transactions and audited financial statements no later than June 30 of the following year; and
3. The Minister of Finance is required to lay in the National Assembly the statement of transactions and the audited financial statements no later than September 30, i.e. within 90 days of receiving them.
The public is reminded that the Chairman of NICIL is Dr. Ashni Singh and the Minister to whom he must submit the report and accounts is the same Dr. Ashni Singh. If it was only these breaches of which he is derelict, it would still be a serious matter. But there are more, and worse. The Government of Guyana “vests” lands and other properties in NICIL – on whose Board also sit Drs. Luncheon and other Cabinet members – which then sells the assets and pockets the money. The Government also uses NICIL to collect dividends from Guyoil, GT&T and other investments which are also retained by NICIL.
This scheme, which assumed scandalous proportion under the Jagdeo/Ashni Singh duo, has become a ruse to get around Article 216 of the Constitution which requires “All revenues raised or received by Guyana to be paid into and form one Consolidated Fund.” By their own boasts, NICIL has collected tens of billions of dollars and not paid these into the Consolidated Fund.
To any ordinary person, so far as the land transactions are concerned, NICIL is merely an agent for the Government. Therefore, the moneys it collects should be paid over to the Ministry of Finance to be deposited into the Consolidated Fund. Instead, in an arrangement which in neighbouring Trinidad would be considered criminal, Dr. Ashni Singh’s NICIL board uses the funds as a second budget to do the things which no Finance Minister would be comfortable in bringing to the National Assembly, like the Marriott Hotel, like getting involved in Pradoville 2 and for miscellaneous purposes including secret overseas trips, etc. Article 217 of the Constitution dealing with spending public moneys does not allow any of these.
Now, to go back to the absurdity about State companies being subject only to the company laws, I refer the financial doctors to the following two documents: 1. the Report of the Working Party on the Harmonization of Company Law in the Caribbean Community, and 2) the Report of the Review Committee on the Companies Act of Guyana.
This is what the Working Party Report under the heading Public Accountability has to say in paragraphs 19.142 [in part] and 143:
“Whether the company is a mixed enterprise or wholly State owned, public funds are employed for the capital of the company. In the view of the Working Party, this introduces an important dimension with which existing company law does not deal….”
“With respect to companies with capital drawn from public funds, however, the State shareholder is in theory the party which should ensure that proper use of those funds is taking place. In practice, this cannot provide a system of accountability to the public for the effective use of public funds. It by no means follows that the assessment of the State as shareholder with respect to the running of the company will stand up scrutiny when viewed as a public investment. Increasingly, arguments are made in this context for some additional mechanism whereby the performance of the company in relation to the investment of public monies is subject to accountability beyond the company itself.”
And the Guyana Review Committee appointed by the Hoyte Administration to consider the report of the CARICOM Working Party recommended the adoption of its recommendation that “wholly-owned government companies should be constituted under the Public Corporations Act.”
Presciently, the authors of the Working Party Report, including our own Bryn Pollard, were saying thirty years ago, that there could be no accountability under the NICIL-type model, even if it did not have the degree of egregiousness practiced by Drs. Singh and Luncheon and Winston Brassington.
And finally, with respect to the chorus that it is for the directors to decide if and when NICIL would pay any dividends to the Government, let us recall that in 2009, the Government, a mere 20% shareholder in GT&T, caused that company to pay more than $6 billion in dividends. And guess who the Finance Minister was and who was the Government director on the Board of GT&T when that “persuasion” took place? Dr. Ashni Singh and Mr. Brassington respectively.
Now the same Luncheon, Singh and Brassington are bold enough, in respect of a 100% Government company in which public property is routinely vested, and which has a 100% Cabinet Board, to plead impotence in calling for a dividend which the country badly needs to help the working and the non-working poor.
To show how reckless and ridiculous it has become, only a couple of years ago the Government forced the Geology and Mines Commission to pay $1.8 billion to the Singh/Luncheon/Brassington NICIL to build/repair roads in the hinterland communities, all done by way of a cabinet directive signed by Dr. Luncheon.
For too long constitutional violations, financial improprieties, mis/malfeasance in public office and breaches of fiduciary duties have been tolerated by this bleeding country. It is time for the talking to stop and for the courts in Guyana, and if necessary the Caribbean Court of Justice, to be invited to address these matters. Sooner rather than later some Guyanese will decide that enough is enough.