Forensic audits, NICIL and the Commissioner of Information

It is incumbent on the DPP to engage the services of special prosecutors whose knowledge, skills and reputation can match those who represent the interest of the accused. The Government also needs to strengthen the investigative capability of SOCU if it is seriously committed to bring to justice those who have been fingered for committing acts that resulted in financial loss to the State – indeed those whose actions collectively and individually contributed to the diminution of the physical integrity of the State through divestment of prime State lands to favoured individuals and groups at give-away prices.

In our two last articles, we bemoaned the current state of cricket and cricket administration in Guyana mainly due to rival groups wrestling for control and resulting in disputed elections. This was exacerbated by a series of court actions, injunctions and rulings. One such ruling was that the cricket bodies lacked corporate status and could not sue or be sued. In this regard, the Court suggested that the Legislature might see it fit to intervene, with the Ministry of Sport playing an interim role “in rescuing the premier sport in the country from the clutches of disarray”. It is against this background that the short-lived Interim Management Committee, headed by Clive Lloyd, was established pending the promulgation of the relevant legislation. When such legislation was passed, its implementation was stalled because the validity of the Act was challenged, resulting in yet another Court injunction. Although the injunction was appealed against, the matter is yet to be heard.

The Cricket Administration Act represents a genuine and sincere attempt to improve the governance and financial accountability of the Guyana Cricket Board and the three area boards. It provides for the incorporation of these boards as autonomous bodies to administer cricket in Guyana. Trinidad and Tobago, and Barbados have similar legislation governing cricket administration. While our Act may not be perfect, it is a good start point to restore cricket to its former glory, and the initiative should be supported by all cricket lovers, players and administrators. Contrary to the assertions of those who are opposed to the Act, the Government’s involvement is minimal and is restricted to the holding of the first elections under the Act. The concept of a Cricket Ombudsman is also a good one aimed at ensuring that the results of the elections represent the will of all those cricket bodies that are entitled to vote at these elections.

Follow-up on the results of the forensic audits

The Minister of Public Security is reported to have stated that the major difficulty in prosecuting persons who have been fingered in the forensic audit reports is the reluctance of key witnesses to give evidence to the police and to testify in the courts. A key concern relating to this reluctance is what may be viewed as a significant mismatch between persons selected as prosecutors on the one hand, and defence lawyers on the other. The accused in all probability will select the best lawyers while the prosecutors may lack the relevant legal background, experience and skills to represent the State in these high-profile cases. These prosecutors are likely to find it extremely difficult to counter the arguments of the battery of experienced and reputable lawyers representing the accused. In the circumstances, witnesses often find themselves in the receiving end, especially during the cross-examination sessions, with the prosecutors standing helplessly by.

Notwithstanding the above, if there is sufficient evidence to prosecute someone, the Government should not prejudge what is likely to happen but should proceed with the prosecution. If witnesses fail to show up to give evidence in court and the case is thrown out, so be it. At least, the Government would have discharged its responsibilities, and citizens will feel reasonably

satisfied that it has done its best to bring to justice those who are alleged to have committed acts that are detrimental to interest and well-being of the State.

It is also incumbent on the Director of Public Prosecutions to engage the services of special prosecutors whose knowledge, skills and reputation can match those who represent the interest of the accused. The Government also needs to strengthen the investigative capability of the Special Organized Crime Unit (SOCU) if it is seriously committed to bringing to justice those who have been fingered for committing acts that resulted in financial loss to the State - indeed those whose actions collectively and individually contributed to the diminution of the physical integrity of the State, especially through divestment of prime State lands to favoured individuals and groups at give-away prices.

A key recommendation of the forensic audit of NICIL is for a detailed transactional audit to be carried out. The Cabinet accepted the recommendation and has mandated the Auditor General to undertake such an audit. However, it has been more than a year since the decision was taken, and citizens are yet to be informed of the results. Last week, the Officer-in-Charge of NICIL stated that the Auditor General was having a difficulty in proceeding with the audit because the related documents were with SOCU and that original documents were needed to proceed with the audit. A few months ago, the Minister of Finance made a similar assertion, but it is unclear what action was taken to access these documents allegedly in the possession of SOCU.

The transactional audit involves the examination of vouchers and related documents in support of the expenditure incurred. It is unlikely that these would have been in the possession of SOCU since they have no bearing on the results of the original forensic audit. It is therefore incumbent on SOCU to explain to the public what really happened since the original documents can easily be released to the Auditor General after photocopies are made and retained by SOCU. That apart, it is not clear whether the Auditor General formally notified the Cabinet of the difficulties he was experiencing. Nor was there any mention of this in his 2015 report to Parliament which was presented to the Speaker on 30 September 2016.

This column is on public record as having stated that the Cabinet has erred in assigning to the Auditor General the responsibility for conducting the transactional audit. It was the Auditor General in the first place who carried out the financial statements audit and who had issued a “clean bill of health” on NICIL over the years in question. He found nothing wrong with NICIL’s transactions and reported this accordingly to NICIL’s board and to the National Assembly, yet he was asked to carry out an audit of these very transactions! This perhaps explains the lack of progress in the transactional audit and the apparent shifting of blame.

Last week, the Stabroek News interviewed the Commissioner of Information on the functioning of his office, which has been the subject of much public criticisms. The Commissioner is reported to have stated that it is the Prime Minister (in his capacity as the Minister responsible for information) who is responsible for preparing an annual report and having it laid in the National Assembly. He cited Section 44 (1) of the Access to Information Act in support of his claim. That section provides for the Minister to lay a report in the National Assembly on the operations of the Act not later than nine months of the close of each year. The report is to include, among others: (a) the number of requests made to the Commissioner; (b) the number of decisions that an applicant is not entitled to access to information requested; (c) the number of applications for judicial review of decisions made and the outcomes of such applications; (d) the number of complaints made to the Commissioner about the operations of the Act and the nature of such complaints; (e) the number of notices served on the Commissioner and the number of decisions made that were adverse to the person’s claim; and (f) the amount of fees collected by the Commissioner.

As can be noted, the law makes no mention of the responsibility of the Minister to prepare the report, and given the nature and content of the report, it is inconceivable that he should do so without detailed input from the Commissioner. In fact, Section 7 (a) (v) of the Act specifically requires the Commissioner to provide the Minister with an annual report. That apart, it has always been the practice for heads of agencies to prepare annual reports and submit them to their subject Ministers for laying in the National Assembly, and I am not aware of any such reports being prepared by a Minister.

The Access to Information Act was passed in the Assembly on 15 September 2011 and was assented to by the President on 27 September 2011. However, it was not until July 2013 that the Commissioner was appointed. Since then, no report has been compiled and laid in the Assembly, and therefore there are three years of backlogged reports: 2013, 2014 and 2015. During the first two years, former President Donald Ramotar was the Minister responsible for information. Is the Commissioner therefore saying that it was the then President who was responsible for preparing the report and that the latter has failed in his duty to do so?

The Commissioner is also reported to have stated that he is not accountable to the Prime Minister and that the latter is not his boss. This is quite an extraordinary statement, considering that he is neither the holder of a constitutional office nor a member of the Judiciary (in which case his reporting relationship would have been to the Chancellor). The Commissioner’s office is an integral part of the Executive branch of Government, and as in the case of every head of agency, he has a reporting relationship to his subject Minister, in this case the Prime Minister. In addition, by Section 5, it is the Minister who determines the salary and allowances payable to the Commissioner, which is further evidence of a reporting relationship. Contrary to the assertions of the Commissioner that he has “boundless” authority and is accountable to the court, his office is not part of the judicial branch of Government.

During the interview, the Commissioner made some derogatory remarks about the Prime Minister. He also referred to the relevant section of the Act concerning grounds for removal from office which are: (a) insolvency; (b) conviction of an offence which involves moral turpitude; (c) unfit to continue in office by reason of infirmity of mind or body; or (d) acquisition of such financial or interest as is likely to affect prejudicially his functions as Commissioner. The President may therefore wish to consider whether: (a) the remarks of the Commissioner about the Prime Minister constitute an act of misconduct; and (b) the Commissioner’s failure to prepare an annual report reflects adversely on his ability to perform.