The Special Organised Crime Unit (SOCU) yesterday withdrew all 19 fraud charges that it had previously instituted against new president Irfaan Ali as it said it would no longer proceed with them.
As a result, Chief Magistrate Ann McLennan declared the conclusion of the matters before her yesterday in Georgetown, while a ruling which was scheduled to be delivered yesterday afternoon by the Court of Appeal to a challenge previously mounted by Ali to the constitutionality of the charges was also not rendered by the appellate court.
Back in 2018, Ali was charged with fraud over the sale of state lands in the ‘Pradoville 2’ Housing Scheme, which he allegedly sold far below market value.
When the matter was called yesterday morning, SOCU’s prosecutor Patrice Henry told the Magistrate that owing to instructions he received from SOCU, the prosecution was no longer going ahead with the matter.
Citing the president’s immunities as provided for by Article 182(2) of the Constitution, on Tuesday Ali’s lawyer Devindra Kissoon wrote the Director of Public Prosecutions (DPP), submitting that to proceed with prosecuting the charges would be unconstitutional.
Article 182(2) states, “Whilst any person holds or performs the functions of the office of President no criminal proceedings shall be instituted or continued against him or her in respect of anything done or omitted to be done by him or her in his or her private capacity and no civil proceedings shall be instituted or continued in respect of which relief is claimed against him or her or anything done or omitted to be done in his or her private capacity.”
When the matter came up for hearing before Magistrate Ann McLennan on August 3rd, Kissoon had made an application for the charges to be dismissed citing Article 182.
Henry had, however, at that time objected to Kissoon’s application, stating that the provision required an interpretation of the constitution for which he argued the Magistrate’s Court had no jurisdiction while further pointing out that the appellate court had active conduct of the case, and that any submission regarding a dismissal should be canvassed there.
The prosecutor had told this newspaper that the issue of immunity applies for the period “while [a president is] in office,” reasoning that such a person could not be protected from suit for charges brought before assuming the office of Head-of-State.
Subsection (1) of Article 182 (1) provides, “Subject to the provisions of Article 180, the holder of the office of President shall not be personally answerable to any court for the performance of the functions of his or her office or for any act done in the performance of those functions and no proceedings, whether criminal or civil, shall be instituted against him or her in his or her personal capacity in respect thereof either during his or her term of office or thereafter.”
In light of this, Henry had further reasoned that the charges could have properly been adjourned until Ali’s term was over since “there is no restriction on the timeline.”
When contacted, Kissoon had said that his application for dismissal was on the basis that even if true, there needs to be substantiated that there was unlawful conduct on Ali’s part before any conspiracy-to-defraud charge can be successfully prosecuted.
‘Smooth and effective governance’
Speaking to the Stabroek News following yesterday’s hearing, however, Henry said that he had received instructions from SOCU to withdraw the charges. He then went on to explain that this was being done in the interest of smooth and effective governance.
He said that while the president can be pursued after leaving office, the matter would have lost its utility by then, especially if he were to be elected to serve for a second term.
Henry explained, too, that there are countries, such as Canada, with immigration policies that prohibit entry to any person, whether a president or not, against whom charges of fraud are laid.
Against this background, he said that were the charges to remain, it would hamper Ali’s presidency and by extension have effects on Guyana at an international relations level.
Henry made it clear, however, that it was a “withdrawal and not a dismissal on its merits.”
In Kissoon’s letter to the Court of Appeal, which was seen by this newspaper following the withdrawal, he indicated that he would be withdrawing Ali’s appeal where he was challenging the constitutionality of the charges.
Granting Kissoon’s request, the appellate court did not convene a hearing as it no longer had a ruling to deliver.
In the latter part of 2018, Ali was arraigned on 19 conspiracy to defraud charges stemming from the sale of land in the Pradoville 2, East Coast of Demerara Housing Scheme, allegedly far below value.
The charges detail offences alleged to have occurred between the period of September 2010 and March, 2015, when Ali was Housing Minister, and involve house lot allocations to six former Cabinet members—former president Bharrat Jagdeo, then Cabinet Secretary Dr Roger Luncheon and then Ministers Priya Manickchand, Dr Jennifer Westford, Robert Persaud and Clement Rohee—along with other persons with connections to the then PPP/C government. The lots were sold at below market rates.
After the charges were instituted against Ali, he moved to the High Court against the Commissioner of Police, the DPP, the Chief Magistrate, and Detective Corporal Munilall Persaud to seek a declaration that there was no statutory or common law duty to obtain a valuation prior to the sale of property.
Ali had wanted the court to also issue an order quashing the DPP’s decision to institute the charges in the first place, which he contended was irrational, unlawful, void and of no effect.
However, High Court Judge Franklyn Holder had ruled that Ali did not have a constitutional right to not be charged, contrary to what he contended in the challenge.
Given the High Court’s ruling, Ali subsequently appealed to the Court of Appeal.
Kissoon’s contention has always been that as a matter of law, there was no requirement for a valuation to first be done before a sale, nor does there exist any law which stipulates what the valuation ought to be or how it should be calculated.
Against this background, he argued that the charges did not amount to an offence known to law, and that even if proven, “are impossible to yield a conviction.”
On August 2nd, Ali was sworn in as president after his party was declared winners five months after the March 2nd, 2020 polls.
