– says ‘the Director of SARA is effectively a political commissar exercising enormous powers’

THE Guyana Human Rights Association (GHRA) is calling on the government, through the Ministry of Legal Affairs, to ensure that there is political consensus on the State Assets Recovery Bill.A public consultation was held last Thursday at the Pegasus Hotel, and concerns have been raised about the powers conferred upon the director and deputy director of the State Assets Recovery Agency (SARA).

In a statement to the media on Saturday, the GHRA said it is concerned about the impartial image of SARA. “The sweeping powers available to the Director of the Agency and the manner of his or her appointment” is of great concern to the GHRA. Relative to the powers, the GHRA believes that the Commissioner of Police, the Director of Public Prosecution (DPP), Head of Customs Anti-Narcotics Unit (CANU), the Bank of Guyana, private banks, and the Chairperson of the Guyana Gold Board are just a few public and private entities that are required to comply with the requests of the Director of SARA.

“Rather than the established procedure whereby other agencies provide the Guyana Revenue Authority (GRA) with information on which it can act, the new Bill requires the opposite: The GRA must provide information on which the SARA will act. The Director of SARA is effectively a political commissar exercising enormous powers,” the GHRA stated.

The GHRA said it is not challenging the wisdom in the accumulation of powers, it is more or less recommending safeguards against “the ample mischief such an accumulation invites.” Noting that the requirement that the National Assembly, by a simple majority and on the recommendation of the Parliamentary Committee on Appointments, would appoint a Director and Deputy Directory of SARA, and that both officers may be removed from office by the same combination of Parliamentary Committee on Appointments, GHRA says this is partisan.

“With the Coalition Government enjoying a majority both in the Appointments Committee and in Parliament, as well as holding the Chairmanship of the Appointments’ Committee, this is effectively a Coalition Government appointment dressed up as bi-partisan,” the GHRA has said.

The GHRA says it is supportive of SARA being a parliamentary agency, but the proposed procedure as stipulated in the draft legislation is not “sufficiently ring-fenced from partisan political influence.” As such, it is the belief of the Human Rights Agency that appointment and removal by a two-thirds parliamentary majority would demonstrate genuine bi-partisanship.

“It took a decade for the Procurement Committee to come up with a list of five people acceptable to both sides, and the end result is a far cry from the brave pronouncements made at the beginning of that decade (regarding) the quality of persons to be appointed. The SAR Bill effectively concedes the unattainability of bi-partisan support by opting to create the Agency on a partisan basis.”

The GHRA noted the explanation in the Explanatory Memorandum of the draft Bill, which speaks to giving effect to the non-conviction-based recovery provisions of the UN Convention Against Corruption (UNCAC), but said similar attention was not paid to the “strong provisions for Governments to promote the participation of society in these matters.”

Article 13 of the UNCAC states that each country should take appropriate measures within its means, and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of, and fight against, corruption.

“The Guyana Human Rights Association (GHRA) is urging the Coalition Government not to sacrifice the powerful platform of transparency, accountability and anti-corruption on the altar of partisan politics.”

Meanwhile, the Association has said that while the “narrowness” of the Bill can be defended by government on technical grounds, lack of an enabling governance context is disappointing. This has been described as “a case of promising much and delivering little.”

The GHRA believes that though the document is a clearly written legislation, the draft legislation is “not the promised anti-corruption platform which was so central to the coalition’s electoral campaign.” As such, the GHRA has submitted its views on the legislation, which speaks to technical specifics of the legislation, introducing new concepts into local law and practice, as well as what it believes to be “over-arching political and contextual issues critical to achieving its aim.”

Additionally, the body believes that if the Bill is passed without a “serious effort to obtain genuine broad-based political support, it risks prolonging ethnically polarized politics.”

Broad-based political support requires two things to occur, the first being the broadening of the scope of the Bill from Asset recovery alone to a more substantial incorporation of the aims of the UNAC, and the second involves creation of a mechanism that includes 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.”

The State Assets Recovery Bill 2016 intends to give effect to the non-conviction-based asset recovery recommendations contained in the United Nations Convention Against Corruption 2003, which was ratified by the Government of Guyana in April 2008. As such, the Bill seeks to fight against unlawful conduct and corrupt practices in relation to property and other assets owned by the State, or in which the State has an interest. The granting of a civil recovery order vests in the State ownership of any property subject to the order.
The new legislation is to be placed before the National Assembly after it resumes sittings from recess.