Dear Editor,
SO, the Kennard Commission of Inquiry-CoI Report(I will show it is a Comedy of Errors- CoE) is now prime news (leaked to the press–how and why is anyone’s guess). The public awaits a formal announcement. Both the Guyana Chronicle and Kaieteur News Sunday, November 2, 2018 editions published highlights.

As I read the Guyana Chronicle and Kaieteur News reports humour turned to unprintable exclamations of disgust and outrage when I read this passage in the Guyana Chronicle: “Justice Kennard also recommended that a detailed forensic audit be done into all transactions between April 1, 2015 and October 31, 2018.” My unprintable exclamation happened because effectively and substantially, by this studied time limit the period of the PPP/C foisted de facto Town Clerk Carol Sooba (from July 24, 2012 to July 14, 2015) was to be exempted (except for the final four months out of her three years) from this “detailed forensic audit”. I–and many others–have always suspected that this CoI is, despite the denials, pure political mischief. The evidence is now in.

I turn to a brief review of this CoI and its report(in the interest of full disclosure: I represented Town Clerk Royston King at the CoI limited to the two days when in obedience to a summons he appeared under protest). FIRST error: this CoI was, ab initio (i e from the very beginning) a NULLITY (i e without any effect or validity whatsoever in law), being ultra vires the Local Government Commission Act, 2013.

I have consistently raised and argued this preliminary point in Mr. King’s Affidavit, my oral submissions before the CoI, and in my written closing submission/address. My argument is unassailable. Nullity has no degrees; it is incurable. It would be a very bold Judge who would give judicial imprimatur to  this CoI. Besides, this CoI is a flagrant usurpation by the Local Government Commission of the MINISTER’s power under the Eighth Schedule of the Municipal and District Councils Act, Cap 28:01 (M&DCA). The report is equally a nullity.

SECOND, (assuming, without conceding, I am wrong on the nullity point) the error of the CoI’s application of, and reliance on, the irrelevant and inapplicable Public Corporations Act, Cap 19:05 and Companies Act, Cap 89:01.Quoting from Kaieteur News article [“Former Mayor was fed information on Town Clerk’s corrupt dealings- CoI report”] the Learned Chairman’s position is that there is “… a strict duty on the councillors and officers of the council to act in accordance with the provisions of the Public Corporations Act 19:05 and the Companies Act, Cap 89:01 … in respect of the Companies Act, Kennard noted that the town clerk and mayor are bound to follow the provision of section 59 ….” I submit that this is HERESY.

This irrelevancy raises serious concerns about the efficiency capacities of the CoI The Georgetown City Council is neither in fact, or in law, a public corporation, or company for the purposes, and within the purview, of the Public Corporations Act and Companies Act respectively. It is ELECTED.

It is a “body politic and corporate” (section 3 of M&DCA), but it is SUI GENERIS (inter alia – it has no shareholding, no directorship, no secretary, it is not registrable under the Companies Act, it is not a separate and distinct person from the mayor and councillors; it sues and can be sued only in the name of the  town clerk).

The mayor, town clerk (and all other Local Government Officers) are creatures of the M&DCA (not the Public Corporations Act or Companies Act) and they derive their powers, functions and duties from it, and it is the M&DCA interpretation, and the limitations of its own wording on those functions, powers and duties, that matters. But a true interpretation of those provisions would vindicate and absolve the town clerk; so the CoI disregards them.

What the readers need to know (given a discerned disposition to accuse the TC of wrongs is how extensive and far-reaching are the powers given to a town clerk by Parliament. So far-reaching are these powers that the town clerk is made the de facto lawyer of all the other officers; and they are all bound by his/her interpretation of the M&DCA as to their powers/functions. The town clerk is for all practical purposes and intent a one-man management.

This management omnipotence was solidified in 2013 (during  the tenure of the PPP/Cs Carol Sooba) by the Municipal And District Councils (Amendment) Act, 2013 which inserted section 8A(g). So, in terms of the M&DCA it is difficult to establish that a town clerk has acted without statutory authority. And if he has acted within his statutory authority, no CoI can find any blame or wrong in him – case law affirms this. Soto circumvent this statutory bulwark, the CoI resorts to the Companies Act and Public Corporation Act!

THIRD, on the evidence of the Guyana Chronicle and Kaieteur News reports, the CoI appears (in its dispensation to criminalise certain local government officers) to have also conveniently ignored and disregarded the detailed and comprehensive remedial provisions in the Municipal and District Councils Act regarding the council’s officers acting contrary to law with regard to the Council’s finances and other assets, and their recovery[sections 177 to 201 (inclusive), “disallowance” and “surcharge” by the Auditor, are expressly provided for]. Why then have the Learned Chairman’s recommendations not focused on this statutory regime)?  Let that statutory process take its course.

Is there condescension, in the report, to particulars of any kind (not just some easy- to- make generalisations of “skullduggery”, “corruption”, “misfeasance” etc.) to show how criminality might have happened? Surely, criminal and civil proceedings would only be merited, where at least the officers can be shown to have acted “contrary to law” or with “negligence or misconduct” within section 186 of the Municipal and District Councils Act. And most lawyers (the CoI had two young attorneys with undementiated memory faculties, assigned to it) would readily recall the well-known House of Lords case of Roberts v. Hopwood (1925), where surcharge in the context of a local authority successfully happened (Roberts v. Hopwood is of seminal applicatin and was applied in Taylor v. Monrow (1960) /All.ER 455].

So I ask this question: has not the CoI erred in law by pre-empting and usurping the statutory jurisdiction of the statutory auditor under sections 177 to 201 of the M&DCA? I submit it has, in its purported findings and recommendation that criminal and civil proceedings should happen. There is not, as there should be, before the CoI any audited evidential basis for this recommendation.

Indeed, that whole system of statutory audit to which Parliament has subjected the City Council, is a most emphatic protest and objection to the CoI’s extravagant nonsense, with a tendency to sensationalise, about criminal proceedings, in the absence of audit. What if the audit proves otherwise? It is conceivable, that an audit will show that there was no bad faith/ mala fides, even if on one possible view, there was mismanagement, of a non-criminal character.

FOURTH, the two most prominent  and specified Terms of  Reference (as published in the official Gazette), are (i) the no- confidence motion against the Town Clerk (ii) the lease by the Town Clerk of the Sussex Street Wharf facilities claimed by N.I.C.I. L. Those two ToRs were the crux and gravamen of the CoI, hence the CoIs fixation.

Yet no highlights have been published about those two ToRs. Is it that in the face of the insurmountable and unassailable arguments made by Mr. King’s lawyer, they died their natural inevitable deaths. The point is this: those two Terms of Reference generated and excited the highest public interest (in any evet at the level of the LGC.

Who can forget the much publicized  “shut up” outburst to the Mayor. So, if Mr. King has been absolved and vindicated in respect of those two ToRs, fairness and elementary justice demands that this be reported to the Local Government Commission with equal fervor, as the condemnation of him. It is a miscarriage of justice, and accordingly an error for Mr. King’s innocence or no-fault in respect of those two ToRs to be hushed- up by the CoI

FIFTH, the Local Government Commission in its Terms of Reference about the Sussex Street Wharf facility (disputed) property ownership matter, must have appreciated that it involved some determination of disputed ownership, and so appears to have assumed, and arrogated to itself, a constitutional jurisdiction or power to vest and confer on a CoI the constitutional and statutory powers enjoyed only by sitting Judges of the Supreme Court of Judicature to hear and determine issues of disputed legal ownership of land, of this type, in this country.

This jurisdictional disability of both the Local Government Commission and the Commission of Inquiry, is trite and elementary. This CoI (assuming, without conceding it is valid) is not a “Court or Tribunal” within article 144(8) of the Constitution. A more disreputable error it is difficult to conceive; as it calls into question not only the motives of the LGC, but the evenhandedness of an acquiescing CoI.

I end with this: out of nothing can come nothing (ex nihilo nihil fit); the case law including the well known local Court of Appeal case of Barnwell,and the Privy Council decision of Ratnagopal (on point about CoI and which I copiously cited to the CoI) is very, very clear about this. Accordingly any recommendation based on a CoI that is a nullity, is, ipso facto, equally null and void. I could have told more, I am out of space. Mr. King has a legitimate expectation that his administrative leave be rescinded forthwith.

Regards
Maxwell. E. Edwards