Government officially disbands State Asset Recovery Agency
The Government has officially disbanded the State Asset Recovery Agency (SARA) and fired it, employees, saying it achieved nothing in five years but gobbled up close to $1 billion in salaries, rent and operating expenses.
In a statement from the Attorney General’s Chambers, it was disclosed that the letters were dispatched on Tuesday terminating the employment of the staff of the agency.
Letters were dispatched to Director Dr. Clive Thomas and Deputy Director of SARA Aubrey Heath-Retemyer.
See full statement below from the Attorney General’s Chamber:
The pre-cursor to the State Asset Recovery Agency (SARA) was the State Asset Recovery Unit (SARU) which was a unit established by politicians under the last administration, the APNU/AFC, and operated out of the Office of the President and staffed by politicians such as Clive Thomas and Tacuma Ogunseye, two of the leaders of the Working People’s Alliance (WPA), a constituent of the APNU/AFC Coalition and Eric Phillips a political advisor to former President David Granger. SARU was funded from the budget of the Ministry of the Presidency and operated under the diktat of politicians.
Then SARA was born. From the moment the Bill became public it evoked widespread criticism from the political Opposition, as well as many civil society organisations, such as the Guyana Bar Association, the Private Sector Commission and the labour movement. The contentions were that the Bill was too oppressive, Sections had unlawful retroactive effect and that many of the provisions collided with the Constitution, including those Articles that protected the fundamental rights of citizens in relation to property and protection of the law.
As a result, to weather the storm, the former Attorney General, Mr. Basil Williams S.C., held a few public consultations which turned out to be placatory and futile as over one hundred (100) amendments were recommended, but none were incorporated into the Bill.
The Bill was heavily criticized by the People’s Progressive Party (PPP/C) both in and out of Parliament. Within days of its assent, a comprehensive constitutional challenge was mounted against the State Assets Recovery Act No. 14 of 2017, by public commentator, Mr. Ramon Gaskin. The challenge impugned approximately 90 of the 107 Sections of the Act, as being unconstitutional and in flagrant violation of the separation of powers. The matter is pending before the Chief Justice, awaiting decision.
Clive Thomas, a WPA leader and Aubrey Heath-Retemyer, a member of the PNC-USA group arrogated the power to appoint themselves in gross violation of the SARA Act, as Director and Deputy Director of SARA, respectively.
The SARA Act specifically provides for the manner in which the Director and the Deputy Director would be appointed. Section 5 of the SARA Act creates a Schedule and states that the provisions of the Schedule shall have effect in relation to the appointments of the Director, Deputy Director, their terms and conditions of appointment, staff, finance and other related matters of SARA.
In relation to the appointment of the Director and Deputy Director the Schedule states in Section (1) that the National Assembly shall –
By a simple majority; and
On the recommendation of the Parliamentary Committee on Appointments,
Appoint the Director and Deputy Director of the State Assets Recovery Agency.
Further, in Section 1 (4) of the Schedule it is stated that the Director and Deputy Director shall be informed of their appointments by the Clerk of the National Assembly:
The Clerk of the National Assembly shall by letter inform the Director and the Deputy Director of their appointment.
Moreover, the terms and conditions of the appointment of the Director and Deputy Director is provided for by Section 2 of the Schedule which is set out hereunder for reference:
2 (1) The terms and conditions of the appointment of the Director and Deputy Director, including their term of office shall be such as determined by the Parliamentary Committee on Appointments.
Messrs. Thomas and Retemyer appointed themselves and determined their term of office, in complete disregard and violation of the aforementioned provisions. An action was filed in the High Court challenging their appointment and that action is also pending.
One of Guyana’s largest financial institutions, the Guyana Bank for Trade and Industry (GBTI) was assailed by SARA, who instituted proceedings to acquire the Headquarters of GBTI located on High and Young Street Kingston in the High Court.
The land was acquired by GBTI by public tendering process over a decade ago. GBTI after acquisition of the land subsequently constructed its Headquarters amounting to an expenditure of several hundred million Guyana dollars. The Honourable Mr. Justice Franklyn Holder ruled that SARA is not a corporate entity and as such it cannot sue or be sued by such a name. The judge found that since the commencement of the Act, no director has ever been appointed and none by construction of the provisions of the Act.
The Court ruled that only a director a duly authorized officer was empowered by Section 40 of the Act to institute proceedings of the nature sought to acquire the land from GBTI. Although, the court raised the issue of an authorized officer as described in Section 2 of the Act having the capacity to institute proceedings such as the one against GBTI, counsel for SARA did not seek an Order to substitute a possible authorized officer with the description of Section 2 of the Act. The case was struck out.
As a result, every other action filed by SARA is bound to fail due to the defect identified by the Court. In the meanwhile, this Agency has achieved nothing in five years, but has gobbled up close to $1B GYD in public funds in salaries, wages, rent and operational expenses.
The PPP/C Administration stated very early on assuming Office that it will close operations of SARA office. Today, letters were dispatched terminating the employment of the staff of this Agency.
The Government will undertake to strengthen asset recovery components of the AMLCFT legislation and will endeavour to enact legislation utilizing the CARICOM model of State Asset Recovery, in respect of state assets acquired illegally. This model legislation is in consonance with our laws and the Constitution.