Dear Editor,
The recent press release from the Guyana Human Rights Association (GHRA) needs to be read and understood in a national perspective. Too often in Guyana, we rush to judgment without first defining the problem. Hence, there is a tendency to create solutions to the wrong problem.
Mr Mike McCormack criticized two main aspects of the State Asset Recovery Bill during national consultations last week. These two aspects were elaborated in the GHRA’s press release. First, it criticized the “narrowness of focus of the new Bill”:
“If the Bill is passed without a serious effort to obtain genuine broad-based political support it risks prolonging ethnically polarized politics. Such support requires two things to happen: firstly broaden the scope of the Bill from asset recovery alone to a more substantive incorporation of the aims of the UN Convention Against Corruption (UNCAC) and, secondly, create 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.”
Mr McCormack fully well knows there are five substantive chapters of UNCAC, namely:
- Chapter II Preventative measures which state, “States Parties are obliged to adopt coordinated policies that prevent corruption and designate a ‘body or bodies’ to coordinate and oversee their implementation.”
- Chapter III Criminalization and law enforcement, which states that “States Parties must criminalise bribery (both the giving of an undue advantage to a national, international or foreign public official and the acceptance of an undue advantage by a national public official), as well as embezzlement of public funds.”
- Chapter IV International cooperation which states that “States Parties are obliged to assist each other in cross-border criminal matters. This includes, for example, gathering and transferring evidence of corruption for use in court.”
- Chapter V Asset recovery ‒ A ‘fundamental principle’ of the Convention, and one of its main innovations, is the right to the recovery of stolen public assets. According to many observers, Chapter V is the main selling point of the Convention, and the reason why so many developing countries have ratified. The UNCAC provisions lay a framework for countries to adapt both their civil and criminal law in order to facilitate tracing, freezing, forfeiting, and returning (see www.U4.no UNCAC in a nutshell ).
Article 20 on illicit enrichment is controversial, because it imputes criminal behaviour to individuals whose assets cannot be explained in relation to their lawful income. This has raised the criticism of human rights advocates, saying that such requirements reverse the presumption of innocence protected by many legal systems. Defenders of the provision argue that prosecutors still shoulder the burden of proof, as they must demonstrate, beyond reasonable doubt, the lack of legal avenues for the accumulation of excess wealth or funds, and as being obtained through corrupt activities.
- Chapter VI Technical assistance and information exchange ‒ In the Convention, technical assistance refers generally to support aimed at helping countries comply with the UNCAC’s provisions. Chapter VI includes provisions on training, material and human resources, research, and information sharing.
The State Asset Recovery Bill presented for national consultation last week is focused on exactly what UNCAC prescribes. While Mr McCormack and the GHRA believe the objectives of the SARA Bill should be more broad, they conveniently forget there are many laws on Guyana’s books (eg theft, embezzlement, tax evasion) which criminalise corruption, and that the Anti-Money Laundering/Countering of Finance Terrirism Act also covers several serious or predicate offences related to corruption.
In addition, the GHRA should be aware that there are 8 teams currently working through the Ministry of Finance and the Ministry of Legal Affairs to creating Guyana’s first National Risk Assessment to comply with Guyana’s obligations as a signatory to UNCAC. Furthermore, in the Prime Minister’s office there is a Guyana Country Report that is being developed in compliance with the Review Mechanism for UNCAC which is an intergovernmental process whose overall goal is to assist States Parties in implementing the Convention. The Serious Organised Crime Unit and the Integrity Commission are also in place.
Finally, in addressing the GHRA’s concern about the Bill being too narrow, SARU’s current Mission “is to aggressively and legally pursue corruption; the theft of State Assets and to ensure future transparency in the use of Government and Public assets”
SARU’s goals as such, are to (1) recover stolen assets within and outside of Guyana; (2) the prevention of corruption and the misuse of public assets; and (3) to work for strengthened regulatory frameworks at all levels to further increase the transparency and accountability of financial institutions, the corporate sector, and public administrations.
Hence, the SARA Bill is part of broader government architecture to prevent corruption and to recover stolen assets which no Guyanese has a constitutional right to own.
The question of “narrowness” has to be viewed in the above context and one in which civil society including the GRHA has a role to play as stated in Article 13 of UNCAC, as referenced by GHRA in its press release. This position is recognized in clauses 6(1) (g) and 11(2) of the Bill which respectively provides for the Director to “raise public awareness on the dangers of corruption and enlist public support in combating corruption,” and to engage in “appropriate consultations with any local or national civil society organisations.”
The GHRA also knows this SARA Bill has had wide international scrutiny, analysis and approval in its development. This is why the civil recovery route has been taken as an alternative but complementary to criminal recovery.
The second major point raised by the GHRA was defined by their statement “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. Rather than the established procedure whereby other agencies provide the Guyana Revenue Authority with information on which if can act, the new Bill requires the opposite: the GRA must provide information on which the SARA will act”.
GHRA is worried about these powers even though GHRA would acknowledge, given their own knowledge of corruption (gold smuggling, stolen government vehicles and properties; land giveaways (Pradoville 2); state contracts; that lawfully obtained information is needed to recover stolen state assets.
Over the years, some sectors of the Guyana press have carried articles suggesting Guyana loses $330 B per year in stolen state assets. SARU’s current analysis indicates the amount may be more than that.
In closing, Guyanese need to support this Bill because it creates an agency with the objective of getting back from any person, state property which he or she unlawfully obtained and to which he or she has no legal right. To suggest that it is a Bill for political partisan or ethnic fights is not only wrong but reckless.
Yours faithfully,
Eric M Phillips
