Dear Editor,
I wish to continue to examine the attempt by the APNU+AFC coalition government to fabricate a controversy regarding their “discovery” of $60 billion in certain commercial banks in the names of certain semi-autonomous statutory agencies. As I stated in a previous missive, it is mystifying how these accounts could have been labelled “private accounts” and how they could have been discovered when they are in the names of these agencies for decades; they are part of the accounting records of those agencies; they are audited annually by the Auditor General, whose reports are presented to the National Assembly, annually and examined in great detail by the Public Accounts Committee, which is made up of the very persons who now claim to have discovered them.
Additionally, these agencies are required by Section 80 of the Fiscal Management and Accountability Act Chapter 73:02, to submit to the subject minister, annual reports and audited financial statements which the minister is mandated by the said Act to present to the National Assembly, again, to the very persons who claim to now have discovered them. I have been an MP for nearly a decade and I know that these documents were laid in the National Assembly by the subject ministers at regular intervals. These accounts and the monies contained therein would have featured prominently in all these documents. The unfortunate reality is that it may very well be the truth that those who claim this ‘discovery’ are seeing them for the first time. Hopefully, some day the Guyanese electorate will realize how little their elected representatives read of what is presented to them in the National Assembly. Certainly, a government cannot be blamed for the failure of an opposition to read documents which are presented to them.
The statutes creating these agencies, for example, the Guyana Geology and Mines Commission Act and the Guyana Forestry Commission Act, make them into bodies corporate with all the attributes of a limited liability company.
There are boards of directors vested with the legal authority to run and manage the affairs of these agencies, including, the fiscal autonomy to maintain their own accounts, hire staff, own assets, attract liabilities, enter into contracts, take and grant loans, etc. These two agencies are among those whose accounts were discovered at commercial banks.
The truth is that these two agencies were created as semi-autonomous statutory bodies in 1979 and obviously not by the PPP but by the PNC government. These accounts were established in commercial banks since 1979. In 1979, the PPP was some 13 years away from governmental power. The impression conveyed, therefore, that these accounts were PPP inventions, is absolutely false. The same rings true for most of the other agencies identified.
Quite apart from Acts which create them, the constitution also allows those agencies to retain their own funds. Article 216 of the constitution provides:
“All revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund.”
Often times, the words in the brackets in Article 216 are conveniently and deliberately omitted by those who wish to contend that all public monies must be deposited forthwith in the Consolidated Fund. I observe from his budget speech that the Minister of Finance is the latest proponent of this falsehood. Article 216 of the constitution, the Acts creating these semi-autonomous statutory bodies and the Fiscal Management and Accountability Act, all provide, expressly and in clear language that certain public funds can and indeed must be lawfully kept separate and apart from the Consolidated Fund. For example, an extra budgetary fund is defined by the FMMAA as “… a fund established by an Act for a specific purpose and funded by a specific earmarked revenue, that operates apart from the Consolidated Fund with the result that the transactions of the fund are not included in the annual budget.” That Act also permits the establishment of deposit funds to be operated by ministries separate and apart from the Consolidated Fund. Additionally, the Government Lotteries Act provides for the establishment of a Development Fund where monies are to be deposited. Section 7 of the Act provides thus:
“all moneys received from the sale of tickets in every Government lottery shall be paid into a deposit account in the Accountant General’s Department and such account shall be called the Government Lotteries Account”;
“at the end of each financial year there shall be paid into the Development Fund of Guyana, after allowing for all expenses and the amount reserved for prizes, the amount standing to the credit of the Government Lotteries Fund.”
This is the famous “lotto funds” that we keep hearing about. It is the Government Lotteries Act which provides for it to be deposited in this Development Fund and not in the Consolidated Fund. Article 216 of the constitution clearly contemplates and provides for this to be done as well. Indeed, if these monies were not deposited in this “Development Fund” and instead, placed in the Consolidated Fund, it would constitute a violation of Section 7(3) of the Government Lotteries Act and accordingly, would be unlawful. I am fortified in this view by the fact that the word “shall” is used in Section 7(3), thereby signifying a mandatory obligation to put these monies in this Development Fund. I hope that as a nation we can read a little more and talk a little less. In any event, if and when these monies are placed in the Consolidated Fund, I will challenge it in the court and put this matter finally to rest.
The above are all examples where the law has provided for monies to be lawfully held in a place other than in the Consolidated Fund. The fact that they are not in the Consolidated Fund does not mean that they are not public monies or that they can be whimsically and capriciously used. They remain public funds to which the government and other authorized agencies will have access in accordance with the law which governs them. Obviously, they must be audited by the Auditor General and included in the audited statements of these agencies.
In the circumstances, I submit that there is absolutely nothing wrong, illegal or irregular for these accounts to have been maintained at the private banks. Indeed, and to the contrary, the laws, many passed by the PNC, authorize same to be done and some of these accounts were actually opened by them. The only difference is that when the PNC government left office these accounts were basically empty. When we left government they had some $60 billion in them.
More importantly, and ironically, the Minister of Finance should really seek legal advice on whether he can, unilaterally and without the ostensible authority of the boards which manage those agencies, simply hijack those monies and place them in the Consolidated Fund without these agencies defraying their expenses and discharging their obligations. I have no doubt that the withdrawal of $60 billion or even $30 billion will have certain adverse consequences both on the banking sector as well as on the economy. But I prefer to defer to those who are trained in this area to expound on those ramifications.
Yours faithfully,
Mohabir Anil Nandlall, MP
