Latest update March 24th, 2023 12:59 AM
Dec 13, 2016 News
By Abena Rockcliffe-Campbell
While many citizens long to see the dawn of a day when politicians who allegedly enriched themselves in office would be brought to justice, the wait seems long from over, as anti-corruption advocates now question the competence of the government in its approach to state assets recovery.
Yesterday, chartered accountant and anti-corruption advocate, Christopher Ram told Kaieteur News that it is surprising, if not mystifying, that the Minister of Finance Winston Jordan mentioned nothing about government’s efforts to recover state assets in Budget 2017.
Ram was keen to note that the exclusion does not mean that the government is not tackling asset recovery, but speaks volume about its importance to the government at this time.
The lawyer said that many of the government’s actions thus far do not necessarily point to the realization of the reality that many upstanding citizens were looking forward to. Ram noted the absence of many key recommendations in the UN Convention against Corruption that were excluded. These, he noted, can help to keep all governments in check.
He also pointed to the fact that a politically exposed person—Clive Thomas—is the “face” of assets recovery.
“Clive Thomas would not be a fit and proper person. He can be deemed a politically exposed person under the Money Laundering Act. Ram pointed this publication to an extensive article—Budget Focus—published on Ram and McRae’s website, that zeros in on the subject.
Budget Focus states that the APNU+AFC Government has disingenuously claimed that the circulated draft State Assets Recovery Bill 2016 complies with the UN Convention against Corruption, when, in fact, the Bill does not contain several key recommendations in the Convention, including financing of candidates and political parties (Article 7), reporting by public officials of acts of corruption (Article 8.4); rules to prevent corruption among members of the judiciary (Article 11.1) and abuse of functions (Article 19), a malady that sooner rather than later affects everyone who occupies an office of power.
Ram and McRae said that more serious concerns arise when one examines the powers that the Bill vests in the Director. It was noted that the Director can do “anything” which he considers appropriate or incidental to the discharge of his functions. It was also noted that, “His powers are much wider than that of the Director of the Asset Recovery Agency under the United Kingdom’s Proceeds of Crime Act on which this Bill is partly based. The Director can assume the functions of the Commissioner-General, the Commissioner of Police as well as the Director of Public Prosecutions. Most frighteningly, the Director can actually contract out the power, functions, and duties conferred on him under the Bill”
Further, it was pointed out that the provision granting the State Assets Recovery Authority (SARA) 25% of the fruits of its labour violates Article 216 of the Guyana Constitution, and gives the agency a direct interest in the funds raised.
Ram and McRae pointed to another issue that was highlighted before by the People’s Progressive Party/Civic. It noted the fact that the draft makes the Director a corporation sole answerable to no one. “His/her only reporting obligation is an annual report submitted through the subject Minister.” Ram and McRae pointed out that this is something that APNU and the AFC, while in opposition, lobbied successfully against with regards to the Director of the Financial Intelligence Unit.
Ram and McRae noted that the Schedule to the Bill provides that the person appointed as Director or Deputy Director of SARA shall be a fit and proper person.
“There are no specifications of what constitutes “fit and proper” but one of the criteria must include independence and exclude “politically exposed persons” – senior politicians and important political party officials. This would immediately exclude Professor Clive Thomas, a co-leader of the Working People’s Alliance, a party in the ruling coalition. Professor Thomas had made expansive claims about the potential and prospects for SARA and represents its face in the public’s mind.”
The accounting firm said that the architects of the Bill apparently did not think it necessary to tell Guyanese that the SARA concept and the corporation sole are taken from the Proceeds of Crime Act of the UK, and that that model was deemed a colossal failure and abandoned, even after efforts at its improvement proved futile.
“Even in financial terms, it was costing almost three times more than the money recovered.”
Further, Ram and McRae said, “They do not tell us either, that the Anti-Money Laundering Act has extensive provisions on freezing and forfeiture of assets in relation to money laundering (29 sections), international cooperation (3 sections) and civil forfeiture (29 sections).”
Additionally, the company noted that there are overlaps with several other substantive pieces of legislation and functions which mean that the possibility of SOCU, other investigative branches of the Police, SARA and the DPP engaging in simultaneous exercises is real. The Bill is silent on whether anyone, and if so who, must give way.
The company concluded that that Bill is “seriously and conceptually flawed.”
Ram & McRae said that it supports the imperative of recovering State assets from politicians, public officials and members of the private sector who unlawfully enrich themselves.
“We support strong measures against tax frauds. We also support the civil asset forfeiture concept. But extending these to all forms of a loosely defined concept of unlawful conduct is a step far too steep. It is dangerous and unworkable.”
The company is calling on the government to show complete commitment to the UN Convention against Corruption by introducing legislation on donations to political parties and candidates. Business persons, large and small do not give for nothing.
Ram and McRae said that this is necessary as businesses expect corresponding favours in return. “And there goes the rule of law.”
The company recommended that the Government set clear objectives and policies of what it seeks to achieve, and meanwhile, use existing mechanisms to pursue suspected acts of illicit enrichment, misfeasance and other violations using both the civil and criminal avenues.
“The Government would also need to remove overlapping functions between SARA and SOCU to make investigations more efficient and effective. If the government were to persist with this Bill as is, it would be needlessly inviting a court challenge, thus setting back its own objective.”
Lies, Lies, Lies!!!
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