In relation to the seizure of the cellphone of the Ministry of Home Affairs’ Permanent Secretary and the revocation of her visa by the US authorities, the President reportedly stated that the Permanent Secretary was on her way to a training programme in China for the People’s Progressive Party/Civic when she was called in for a secondary inspection at Miami International Airport. Amid criticisms about political party officials being appointed to the position of Permanent Secretary in what has traditionally been a politically neutral Public Service, the Minister of Home Affairs asserted that such appointments are solely at the discretion of the President. However, all appointments to the Public Service, including those of Permanent Secretaries and Regional Executive Officers, are the responsibility of the Public Service Commission (PSC), as provided for by Article 201(1) of the Constitution:
The power to make appointments to public offices and to remove and exercise disciplinary control over persons holding or acting in such offices shall vest in the Public Service Commission.
There are of course exceptions in relation to certain offices, but the office of the Permanent Secretary is not listed as one of them. The 2015 report of the Commission of Inquiry into the Public Service specifically stated that it concurred with the views of many of those who have given testimonies, that Permanent Secretaries and Regional Executive Officers should be appointed by the PSC, instead of the President and the Minister of Communities. In this way, there will be a more integrated Public Service and greater synergies with the Administrative Regions. Accordingly, the Commission recommended the following:
(a) The PSC be reconstituted with suitably qualified and competent persons of high integrity to exercise their duties in strict fairness, impartiality, and on the basis of merit. It is desirable, as in the case of the Public Service Appellate Tribunal, that members of the Commission should possess experience and show capacity in matters relating to administration, human resource management or public affairs;
(b) The Constitution and other applicable laws be appropriately amended to empower the PSC to appoint Permanent Secretaries and Regional Executive Officers;
(c) All appointments to the Public Service positions be open to internal and external competitions to obtain the best from the labour market; and
(d) All appointments by the PSC be on the basis of merit and be free from political influences, and meet the essential qualifications and requirements for the jobs to be performed.
It should not be over-emphasised that governments come and governments go, but it is the professional and politically neutral Public Service that provides the institutional memory to facilitate continuity.
In today’s article, we discuss the key provisions of the National Intelligence and Security Agency (NISA) Bill 2023 which is currently before the National Assembly for consideration. According to the Explanatory Memorandum, the functions of the Agency include gathering information on national intelligence and security that will provide a basis for decision-making and preventive action and conducting analysis of the information; and providing intelligence and security advice to the President, Cabinet and, on the President’s direction where necessary, Ministers and entities in the security sector and other national stakeholders. The Bill defines “national intelligence estimate” as ‘a comprehensive analysis of information on national security interest that informs on the adequacy, capabilities and vulnerabilities of national security threats to Guyana’. “National security interest” has also been defined to include ‘information or events that have the potential to influence any sector within Guyana’.
So far, the Bill has generated quite a controversy, with the latest criticism coming from the Guyana Bar Association which felt that the provisions of Section 41 of the draft legislation would insulate the Agency and its officers from legal action if they access information provided by clients to their lawyers.
According to the President, a national intelligence agency has been in operation for over a decade although there had been no official announcement to this effect. If that was the case, such an outfit functioned without being accorded legal status. Back in 2013, it was former Commissioner of Police, Winston Felix, who advocated the need for legislation governing the operations of the Unit to ensure proper accountability and to avoid a situation where its functioning should be left to individuals who are members of the ruling political party. In July of that same year, the Opposition political party, APNU, had also called for the Unit, whose operations it asserted were shrouded in secrecy, to be governed by a legislative framework.
Following the Bar Association statement, the President stated that he has ordered that the Bill be taken to a Special Select Committee of Assembly for detailed consideration:
I have instructed the Minister of Parliamentary Affairs and Governance and the Attorney General that the National Intelligence and Security Agency (NISA) Bill be sent to a Special Select Committee of the Parliament so that the views and ideas of all stakeholders can be examined.
I am aware of the importance of this Bill, but equally, I am committed to ensuring the fulsome nature of the Bill is understood and that interested stakeholders be given the opportunity to contribute to it.
While the President should be commended for his views on the matter, there seems to be a breach of the separation of powers. As the head of the Executive Branch of Government, it appears inappropriate for him to give instructions for the Bill to be referred to a Select Committee of the Assembly which is part of the Legislative Branch of Government. It is a decision that has to be made by Members of Parliament (MPs). In the circumstances, he should have requested MPs from the Government’s side to give support to any proposal to have the Bill referred to a Special Select Committee of the Assembly.
The Bill has six parts, namely, Preliminary; National Intelligence and Security Agency; Administration of the Agency; Operational Powers of the Agency; Complaints; and Miscellaneous.
Part II – National Intelligence and Security Agency
The main functions of NISA, as set out in Section 4(1), are:
(a) To collect information on national intelligence and security
interest that provides a basis for decision-making and
potential actions;
(b) To store and process and disseminate such information;
(c) To provide a modern central platform for collecting relevant
information;
(d) To maintain a national database on information on national
intelligence and security;
(e) To conduct research to enhance efficiency in information
management;
(f) To provide national intelligence estimates as well as
intelligence and security advice to the
President and other relevant officials; and
(g) To provide support to investigations to threats
to national intelligence and security.
Section 4(2) provides for the functions of the Agency to be exercised only: (i) in relation to defence and foreign policies of the State; (ii) protection against espionage, terrorism and sabotage from the activities of persons within Guyana or agents of foreign powers, especially as regards attempts to undermine democracy and the operations of institutions of the State; (iii) in the interest of the economic well-being of Guyana; and (iv) in support of other entities in the security sector and other national stakeholders in the prevention and detection of crime.
It has been argued that there is a strong possibility that Section 4(2) can be used to monitor the activities of ordinary citizens, especially those who are critical of the Government, such as journalists and civil society activists, thereby intruding on their personal privacy and confidentiality of information. One hopes that during the consideration of the Bill by Assembly this matter will be carefully examined and appropriate amendments made to ensure that freedom of expression, freedom of association and the right to express dissenting views, are not stifled in any way, as these are indispensable elements in any system of democratic governance.
Part III – Administration of the Agency
Section 6 of the Bill provides for the President to appoint the Director and Deputy Director of NISA without consultation with anyone, for example, the Leader of the Opposition and other stakeholders, a concern that was raised by the A New and United Guyana political party. The reporting relationship of the Director is also only to the President or a person designated by the President.
By Section 17, NISA is to be funded as a direct charge to the Consolidated Fund. This means that its budgetary allocation will not be voted for by the Assembly. The Minister of Finance will present NISA’s budget to the Assembly for incorporation in the National Estimates. Funds are also to include grants, gifts, donations as endowments as approved by the President. It is unclear why the funding of such an Agency is not subject to the approval process of the Assembly since it is not a constitutional agency.
The accounts of NISA are to be audited annually by the Auditor General, and the related report is to be presented to the Assembly. However, the responsible Minister in consultation with the Director, is required to redact the accounts and the Auditor General’s report to remove sensitive information. Additionally, the audited accounts cannot be published by anyone, which effectively means that the media as well as commentators are prohibited from discussing the accounts and the Auditor General’s report thereon. Then one may legitimately ask: what is the purpose of redacting the audited accounts and report thereon?
To be continued –
