The Guyana Human Rights Association (GHRA) yesterday warned that without political consensus the draft State Assets Recovery Bill 2016 runs the risk of “prolonging ethnically polarized politics.”
In a strongly worded press release dispatched to the media two days after participating in a public consultation on the contents of the Bill, the GHRA again registered its dissatisfaction with some aspects and called for there to be political consensus on the proposed piece of legislation.
The GHRA stated that the draft Bill is not the promised anti-corruption platform which was so central to the coalition’s electoral campaign and while the “narrowness of focus” in the new Bill can be defended on technical grounds, the lack of an enabling governance context comes as a disappointment to the GHRA, “a case of promising much and delivering little”.
It was stated that the association submitted its comments during the consultation which was organized by the Attorney General’s Chambers and they addressed some technical specifics of the Act which introduced new concepts into Guyanese law and practice as well as some of the over-arching political and contextual issues critical to achieving its aim.
The GHRA said that the broad-based political support which the Bill needs, required two things to happen. The first, the release said, is the broadening of the scope of the Bill from asset recovery alone to a more substantive incorporation of the aims of the UN Convention Against Corruption (UNCAC). The second is the creation of a mechanism that brings a range of civic and private sector forces into the process of promoting the Bill.
“Anything less will inevitably prompt the question whether ‘anti-corruption’ for the ruling party ever meant more than pursuing those now in opposition for corrupt acts committed while in power,” the release read.
It said GHRA’s concerns over the impartial image of the proposed new State Assets Recovery Agency (SARA) are prompted by two considerations: “the sweeping powers available to the Director of the Agency and the manner of his/her appointment.”
With respect to the powers, the following private and state institutions are only a selection of those which must comply with any request from the Director of SARA for information they hold: the Commissioner of Police, the DPP, Head of CANU, the Bank of Guyana, private banks, and the Chairperson of the Gold Board, the release said.
“Rather than the established procedure whereby other agencies provide the Guyana Revenue Authority with information on which it can act, the new Bill requires the opposite: the GRA must provide information on which the SARA will act. The Director of SARA is effectively a political commissar exercising enormous powers,” the GHRA said.
Making it clear that the GHRA at this stage is not challenging the wisdom of this accumulation of powers, it said that is only recommending safeguards against the ample mischief such an accumulation invites.
It was stated that the envisaged procedure set out in the First Schedule to the Bill requires that “the National Assembly shall: a) by a simple majority; and b) on the recommendation of the Parliamentary Committee on Appointments, appoint a Director and Deputy Director of the State Recovery Agency.”
Similarly, GHRA pointed out both officers may be removed from office by the same combination of the National Assembly and the Parliamentary Appointments Committee. “With the Coalition Government enjoying a majority both in the Appointments Committee and in Parliament, as well as holding the Chairmanship of the Appointments Committee, this is effectively a Coalition Government appointment, dressed up as bi-partisan,” the release said.
It was stated that while the GHRA is supportive of SARA being a parliamentary agency, the proposed procedure is not sufficiently “ring-fenced” from partisan political influence. “Genuine bi-partisanship would require a two-thirds parliamentary majority. Achieving this in the current atmosphere is remote. It took a decade for the Procurement Committee to come up with a list of five people acceptable to both sides and the end result is a far cry from the brave pronouncements made at the beginning of that decade of the quality of persons to be appointed,” it said adding that the proposed Bill effectively concedes the unattainability of bi-partisan support by opting to create the agency on a partisan basis.
The GHRA welcomed the reference in the Explanatory Memorandum that the draft Bill explicitly seeks to give effect to the non-conviction-based recovery provisions of the UNCAC. “Unfortunately the same attention was not paid to the strong provisions for government to promote the participation of society in these matters,” it added.
GHRA in the release quoted Article 13 of the UNCAC to reinforce its point. That article states that “Each State Party shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption.”
The release said that operating entirely from within the confines of the Ministry of the Presidency may prove more “agreeable than seeking awkward alliances.” It was noted that at the end of the day, working in silos of this nature is ill-suited for the efforts needed to create inclusive anti-corruption architecture.
Guyana, it was stated does not have to recreate the wheel in this area. The release informed that many countries are grappling with anti-corruption measures, particularly the central issue of access to reliable information. Mexico, a world leader in ‘open governance’ in this respect and Chile, were used as examples.
The release went further to state that the Chile Transparency Council (elected by a two-thirds Parliamentary majority) was recently able to boast that it had responded to over 90% of the Freedom of Information requests received from the public.
“The Guyana Human Rights Association is urging the coalition government not to sacrifice the powerful platform of transparency, accountability and anti-corruption on the altar of partisan politics,” the release said.
It was promised that the concerns raised at last Thursday’s forum would be looked it. It is unclear if another consultation session will be held before Parliament comes out of recess in October. It is expected that once recess ends, the final Bill will be brought to the National Assembly for passage.
There have been concerns about the length of time that the legislation is taking. Observers have criticized government for allowing the State Assets Recovery Unit to operate without the required legislation in place.
