… says officials must give account for odd decisions
In cases where a law, policy or regulation does not definitively point the way forward, an official is expected to make decisions based on his/her own discretion.
Guyana’s Petroleum Act allows for some amount of discretion to be exercised by someone like the subject Minister. But Guyana’s development partner, The World Bank, holds firmly to the position that the exercise of discretion should be kept to a minimum when it comes to giving out oil contracts.
The Bank expounds on this in its publication: License To Drill – ‘A Manual on Integrity Due Diligence for Licensing in Extractive Sectors’.
The institution noted that, in any licensing system, there is likely to be a need for an official to practice discretion. But it explained that when there is less opportunity for officials to exercise discretion, the likelihood of corruption may be less. So it posited that the need for discretion should be minimal.
“A good licensing process will be one in which discretionary decision making is eliminated where it is not absolutely necessary, it is clearly limited where necessary, and the criteria and other factors on which discretionary decisions are made (technical and otherwise) are spelled out as clearly as possible.”
This is because some officials may make mistakes or abuse their authority, exercising discretion based on some precursor to corruption, like a conflict of interest. That is another matter The World Bank warns against in License To Drill.
So the Bank states that there should be clear limits in discretion. Any overstepping of these limits would be described as an abuse.
An effective oversight procedure it notes is that at least one official should be responsible for overviewing critical decisions to make sure they comply with laws and regulations. In such cases, the official exercising discretion should also give a full and written justification documenting all factors which led to the decision, The World Bank advises.
The process would involve publishing the decisions for public scrutiny.
“All relevant factors surrounding the decision must be made public, maintained as official records, and appropriately archived.”
The Bank states that setting up checks and balances would help to maintain transparency and credibility of a licensing system.
As such, Guyana’s development partner holds the position that persons must be given the opportunity to challenge decisions within a set procedure. This could occur within an administrative procedure, or a judicial system.
“Procedures for determination must be fair and balanced so that applicants can appeal decisions they believe are arbitrary, capricious, abusive, or irregular. Such appeals should be to an independent and competent supervising authority…”
One example that may be interpreted as an exercise of discretion in Guyana’s oil licensing is in the sizes of blocks awarded to multiple companies operating offshore Guyana. Kaieteur News reported last year that though the law sets a threshold for the sizes of oil blocks, several block awards were more than the law allows.
These awards were made under both the current and former administrations.
One of the gravest, pointed out time and time again, is the Stabroek Block award. It is the largest offshore Block, at a whopping 6.6 million acres. The acreage – said to be at least six times more than the law allows – was first awarded by former President Janet Jagan in 1999.
The nation’s rules and regulations also specify that at every request for a renewal, the company is expected to relinquish half of the oil blocks it started with. But the PPP made an adjustment to the contract, thereby allowing the company to hold on to the 600 oil blocks.
Then, in 2016, Minister of Natural Resources, Raphael Trotman awarded a new contract allowing the company to keep the concession.
Chartered Accountant Ramon Gaskin had told Kaieteur News that Trotman had the opportunity to correct this matter, but that he failed to do so.
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