President, some ministers breached the Constitution and laws of Guyana

Dear Editor,

I am appalled at the explanation given by President David Granger with respect to the non- transparency and unaccountability of the US$18,000,000 signing bonus from ExxonMobil to Guyana. The money was received in the middle of 2016 and hidden from the people of Guyana until December 2017, when the government was forced to admit that the funds were received and placed in an account outside of the Consolidated Fund.

President Granger’s most incredible explanation is that there were some national security implications and that is why the transaction was handled in that manner. That manner involved the clandestine setting up of a bank account with the Bank of Guyana.

ExxonMobil has made it pellucid via its Country Manager, Mr Rod Henson, that it had no role whatsoever in the use of or where those funds go. It therefore stands to reason that there was no contractual or commercial obligation for placing the funds outside the ambit of the regular accountability process.

This accountability process is governed by legislation under Article 216 of the Constitution of Guyana, which deals with the establishment of the Consolidated Fund. It states: “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”. Again it is for the President to tell us under which Act of Parliament he has exercised this exception.

After the kerfuffle caused by the Minister of Natural Resources and the Minister of Finance giving opaque answers to questions from the media, the Minister of Finance claimed that the special fund was set up so that it could be held safe for use in the event moneys are needed to pay for legal costs associated with litigating the border dispute. He further claims that at that time the funds would then be placed in the Consolidated Fund and extracted by way of a Supplementary Budget.

I wish to contend that this contemplated procedure by the Minister of Finance violates the letter and spirit of Article 217 which deals with the “Withdrawals from Consolidated Fund or other public funds”. This Article states: “1. No moneys shall be withdrawn from the Consolidated Fund except-  a. to meet expenditure that is charged upon the Fund by this Constitution or by any Act of Parliament; or   b. where the issue of those moneys has been authorised by an Appropriation Act; or  c. where the issue of those moneys has been authorised under article 219.

“2. Where any moneys are charged by this Constitution or any Act of Parliament upon the Consolidated Fund or any other public fund, they shall be paid out of that fund by the

Government of Guyana to the person or authority to whom payment is due.

“3. No moneys shall be withdrawn from any public fund other than the Consolidated Fund unless the issue of those moneys has been authorised by or under an Act of Parliament.

“4. Parliament may prescribe the manner in which withdrawals may be made from the Consolidated Fund or any other public fund”.

This is an egregious precedent being set by the executive arm of government, especially coming from the President and his ministers. The Constitution and public laws are there to protect the people from the arbitrary actions of the executive. Articles 116 and 117 are there to do exactly this: to protect the people’s funds from the arbitrary actions of the government. All actions of the government must find their source from the Constitution or the laws of the country. Otherwise, they run the risk of being illegal with serious consequences. Such consequences are spelt out in Section 85, Liability of official in The Fiscal Management and Accountability Act, which states:  “An official who –

(a)  falsifies any account, statement, receipt or other record issued or kept for the purposes of this Act, the Regulations, the Finance Circulars or any other instrument made under this Act;

(b)  conspires or colludes with any

(c)  knowingly permits any other person to contravene any provision of this Act,

is guilty of an indictable offence and liable on conviction to a fine of two million dollars and to imprisonment for three years”.

The President and some of his ministers have sabotaged and abused due process and procedures stipulated by law for the regulation of the Consolidated Fund.  As a minimum, a declaration of the court should be sought to determine whether the action of the President and responsible ministers violates the Constitution and laws of Guyana. This is invaluable to stop the slide into the further arbitrary action of the government. Unfettered misconduct in public office is an abomination of our constitutional and parliamentary democracy.

Yours faithfully,

Tameshwar N Lilmohan

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