Nandlall takes gov’t to court over signing bonus

-seeks order for deposit into Consolidated Fund

Anil Nandlall

Former Attorney General (AG) Anil Nandlall yesterday filed an action in the High Court challenging government’s decision to deposit the US$18M bonus received from Esso Exploration and Production Guyana Limited, CNOOC Nexen Petroleum Guyana Limited and Hess Guyana Exploration Limited into a Bank of Guyana account.

“The said sum …falls within the category of “revenues or other monies” contemplated by Article 216 of the Constitution as well as “all public monies” contemplated by Section 38 (1) of the Fiscal Management and Accountability Act, Chapter 73:02, and accordingly, must be credited fully and promptly paid into and form one Consolidated Fund”, Nandlall posited in court documents while listing several more grounds.

He was named as the applicant while the Attorney General of Guyana and the Minister of Finance are listed as the respondents.

The matter will be heard by Chief Justice (ag) Roxane George on March 13, 2018 at 1:30pm.

Nandlall is asking the court for a declaration that the deposit received by government as a Signature Bonus pursuant to Clause 33 of the Petroleum Agreement executed on 27th June, 2016 into an account within the Bank of Guyana, designated in writing by the Minister of Finance and not in the Consolidated Fund, ‘is contrary to and in violation of the letter and spirit of Article 216 of the Constitution of the Cooperative Republic of Guyana and Section 38 (i) of the Fiscal Management and Accountability Act, Chapter 73:02, Laws of Guyana and is accordingly, unconstitutional, unlawful and illegal” and an Order directing the Minister of Finance to forthwith transfer and deposit the said sum into the Consolidated Fund.

The deal has been mired in controversy ever since it was publicly disclosed that the money was received. Former Auditor General Anand Goolsarran has said that the signing bonus should be returned to ExxonMobil as it cannot be considered as legitimate.

Nandlall, an opposition MP in his court documents made it clear that part of his parliamentary duties include the scrutiny of actions and omissions of the Executive Government with a view to ensuring that there is compliance with the Constitution and the laws of Guyana;

He explained that on the 27th day of June, 2016, the Government of Guyana executed a contract styled ‘Petroleum Agreement’ with Esso Exploration and Production Guyana Limited, CNOOC Nexen Petroleum Guyana Limited and Hess Guyana Exploration Limited.

He noted that Article 33 of the said contract provides “The contractor shall pay the Government a signature bonus of eighteen million United States Dollars (US$18,000,000). Such payment will be made within a period of fifteen (15) Business Days after the Effective Date, or such earlier date as agreed amongst the Parties. Such payment will be made to a bank account within the Bank of Guyana, which is owned by the Government as designated in writing by the Minister of Finance of the Government. (The) Contractor shall verify such bank accounts and the Minister agrees to cooperate, assist and provide (the) Contractor any information it requires to conduct such verification.”

According to Nandlall, pursuant to the said Article and by its own public admissions, the government received the money from the contractor and it was duly deposited by the Minister of Finance into an account established at the Bank of Guyana for that purpose.

He reminded that Article 216 of the Constitution of the Cooperative Republic of Guyana provides for “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”.

Section 38 of the Fiscal Management and Accountability Act, Chapter 73:02, he added, provides for “(1) All public moneys raised or received by the Government shall be credited fully and promptly to the Consolidated Fund, except (a) moneys credited to an Extra budgetary Fund as stipulated in the enabling legislation establishing that fund; (b) moneys credited to a Deposit Fund; and (c) as stipulated in the Constitution. (2) The Consolidated Fund shall be managed by the Minister or by an official in the Ministry to whom the Minister has delegated that responsibility”.

Nandlall argued that given the fact that these monies fall within the categories “revenues or other monies” and “all public monies”, the deposit into an account established by the Minister of Finance within the Bank of Guyana and keeping it there without depositing same into the Consolidated Fund is in breach of and contrary to the letter and spirit of Article 216 of the Constitution as well as Section 38 (1) of the Fiscal Management and Accountability Act, Chapter 73:02.

According to Nandlall during the hearing his affidavit along with a copy of the contract will be used as documentary evidence.