Transparency watchdog says DPP’s decision to disallow charges against Ministers should be challenged
Full press statement by Transparency Institute Guyana Inc. (TIGI) on Charges Against Public Office Holders:
The charges for misconduct in office against the former Minister of Finance and the former head of the National Industrial and Commercial Investments Limited is a welcome disruption to impunity for corruption and malfeasance in office that exists in Guyana.
But let us be clear, TIGI is neither taking a position against Dr. Ashni Singh and Mr. Winston Brassington nor attempting to pronounce on their guilt. Given that charges have been filed, we leave it to the court to determine the outcome. In this regard, the pronouncements made by politicians on these matters even while the cases are before the courts are improper and appear as attempts to pervert the course of justice and play on the emotions of the citizens.
TIGI also welcomed the attempt to institute charges against current ministers of government for their conduct in office. There are legitimate questions to be answered in relation to the Sussex Street pharmaceutical bond deal, procurement in the health sector and the Durban Park project.
With respect to these matters private charges against Dr. George Norton (former Minister of Health, now Minister of Social Cohesion), Ms. Volda Lawrence (Health), Winston Jordan (Finance), David Patterson (Public Infrastructure) and Dr Rupert Roopnaraine (Public Service) were filed but were disallowed by the Director of Prosecutions (DPP) on procedural grounds.
TIGI believes that any current or former government official or employee who mismanaged or misappropriated state resources should be held accountable and where appropriate be made to make amends inclusive of returning what was taken or given away.
As long as there is merit in the matters identified, the currency of alternative motives is of little importance. Hence, given the matters involved, we hold to our view whether or not it is perceived that the charges stemmed from retaliatory politics.
In order to end impunity for corruption, the undocumented buddy system in which the major political camps agree to criticise but not prosecute each other for malfeasance must end. Public officers must know that they will be held accountable for what they do with public resources.
TIGI agrees that the proper procedures must be followed in all legal matters. However, there are unanswered questions about the path taken by the DPP to disallow the charges against current ministers of Government. The DPP is reported as indicating that:
“These charges concern a grave issue under the criminal law in relation to two serving Ministers. In the interest of good governance in the State of Guyana such allegations ought first to have been reported to the Guyana Police Force for an investigation to be launched and the advice of the DPP sought” (Stabroek News (SN), April 27, 2018).
In response, the former Attorney General and member of the political opposition has indicated that there is no law requiring the steps identified by the DPP (Kaieteur News (KN), April 24, 2018). We have also been unable to verify that such provisions are made in the law notwithstanding the powers of the DPP articulated in Section 187 of the constitution.
We, therefore, believe that the decision of the DPP can and should be challenged in court. Such a challenge will clarify the appropriate procedure and serve as a guide for future actions.
Nevertheless, even if a challenge to the decision of the DPP is made, there is nothing preventing Mr Anil Nandalall in his capacity as the attorney who filed the private criminal from following what was indicated by the DPP and reporting the matters to the police to begin a new process. It is important to note that the DPP has not, as far as we are aware, pronounced on the merits of the allegations. TIGI encourages both a challenge of the DPP’s decision and reporting the matters to the police.
Criticisms of the Charges Against Former Office Holders
In the debate about the charges against former officials in the press and in social spaces, political motivation, race and the fact that only former officials have been charged by SOCU have been cited. From our perspective, these matters can be clarified by considering a few basic points.
- SARA and SOCU were established subsequent to the 2015 change in government and the legal framework for SARA was finalised more recently. The first set of cases that SARA was expected to address were those that would be based on the findings of the forensic audits that were done post-elections. Given that the forensic audits focused on the operations of the previous government it would seem illogical to expect that the first (and perhaps several subsequent) set of charges would not be against members of the former government.
Prior to the charges, the PPP/C had used the very fact that no charges were filed to criticise the current government and to claim vindication. The current PPP/C rhetoric, therefore, appears to amount to taunting the government about its inability to take action then crying foul when action is taken.
- On the matter of race, one only needs to ask who the holders of public offices and of senior posts in the public service in the period covered by the forensic audits were. Of course, this does not mean that only people of a particular ethnicity held all the offices, but probability would seem to be in favour of individuals of East Indian descent. It is therefore likely that when former public officials are charged, many would be of East Indian descent without automatically evidencing racial profiling.
This does not mean that there is no racial profiling. Instead, it merely means that a charge of racial profiling wold require more substantive justification that that provided to date and should not involve omission of the fact that the first case filed and which is still ongoing is against two individuals – former Minister Jennifer Westford and the Chief Personnel Officer Margaret Cummings – who are of African descent.
- One of the issues cited in the argument is the fact that SARA and SOCU have not addressed more recent matters that have emerged under the current government. This is a reasonable argument which TIGI is inclined to support. In fact, TIGI has formally requested of the SARA director that the matter of the ExxonMobil signing bonus be addressed by SARA. However, we note that it took nearly three years for the charges against Dr. Singh and Mr. Brassington to be formally filed and this should help to put into perspective the timeframe within which we might expect more recent matters to be addressed.
That notwithstanding, SARA and SOCU are not absolved of responsibility to deal with current matters and we take note of the fact that it has not indicated that the more recent matters lack merit. TIGI will hold SARA and SOCU accountable for handling matters that have arisen under the current government as much as we support it in dealing with matters that arose under the PPP/C.
SARA and SOCU’s Public Image
SARA and SOCU have a major problem with their respective public image and this will not be resolved by neglect. As it relates to SARA, it is improper for officials to be in the news as often as they have been on the kinds of matters highlighted. It is highly inappropriate for a member of the upper management of SARA to have threatened people on social media (see INews Guyana, March 12, 2017).
SARA’s mandate is too important for it to be compromised by any single individual. We are also floored by the fact that SARA was burglarised and wonder at the confidence this inspires in its international partners and in Guyanese.
SARA is in need of a clear and transparent policy on case selection and on the basis for deciding whether to pursue civil or criminal prosecution and on the circumstances under which it will allow individual to return assets and avoid prosecution. The transparency component of this recommendation means that the policy should be publicly available so that decisions made can be checked against the policy. The director of SARA has indicated that such a policy is forthcoming (SN, May 15, 2018) and we, therefore, call for urgency in this matter. In the absence of an appropriate and transparent policy, SARA will be unable to address suspicions of partiality.
With respect to SOCU, TIGI is alarmed at the regularity with which photographs and headlines about the arrest and questioning of former government officials and employees appear in the press, and the kind of access that the press has, to ongoing investigations.
The press is not in the wrong for such reporting, rather we question how it seems to know what will happen before it does so that it can be in a position to capture the images that it does. One wonders at the comfort of SOCU’s international partners with the current state of affairs. Unless SOCU establishes clear policies and strategies to prevent leaks and other occurrences that can compromise its investigations, it will be unable to address the perception that it is a tool to embarrass the former government (now political opposition) and is not independent of the influence of the executive and the Attorney General in particular.
May 28, 2018