The State Assets Recovery Act 2017

proceedings in the High Court for a civil recovery order. The focus is on the property and not on the individual who holds or has an interest in the property.

The Act has seven parts, namely:

Part I Part II Part III

Part IV

Preliminary Establishment of SARA Establishment of Recovery of State Assets Fund Civil recovery and preservation of State property obtained through unlawful conduct Orders to assist investigation disclosure International cooperation Miscellaneous

The preliminary part of the Act provides some useful definitions, including what constitutes “property”. It considers recoverable property to include “State property obtained through unlawful conduct involving a public official or any other person or any benefit obtained or derived in connection with a public official’s or any other person’s unlawful conduct in respect of State property”.

Part II – Establishment of SARA

Section 3 of the Act provides for the establishment of SARA and for the person holding the post of Director to be a corporation sole.

Appointment of Director and Deputy Director

The Act provides for the appointment of a Director and a Deputy Director by a simple majority of members of the National Assembly on the recommendation of the Parliamentary Committee on Appointments (PCA). The criteria for appointment are:

(a) significant experience in management or skills in leading investigations into asset recovery;

(b) possession of a degree in law, economics or finance from a recognized university;

(c) ten years’ experience in a relevant field, five of which at a senior management level; and

(d) such other requirements that may be determined by the PCA.

The terms and conditions of appointment of the Director and the Deputy Director, including their tenure of office, are to be determined by the PCA. Appointment is for a period of not less than three years and not more than five years, renewable. SARA’s functions The key functions of SARA are to:

(a) investigate into whether property or interest in property constitutes State property obtained through the unlawful conduct of a public official or other person;

(b) trace and identify property, whether situated in Guyana or in a foreign country or territory, suspected to be State property obtained from the unlawful conduct of a public official or other person;

(c) take appropriate measures, consistent with the Act to deprive or deny any person of property believed to be State property, as may be appropriate;

(d) institute and conduct proceedings in the Court for the recovery or protection of State property, or for the freezing of proceeds of corrupt or unlawful conduct or related offences, or the payment of compensation and disciplinary measures in relation to State property; and

(e) raise public awareness on the dangers of corruption and enlist public support in combatting corruption and other crimes, especially in relation to public offices and State property.

SARA’s functions are to be discharged by the Director in a way that he/she considers is best calculated to contribute to the reduction of crime and the recovery of State property derived from unlawful conduct. In discharging his/her functions, the Director shall consider whether the recovery of State property may be better secured by means of criminal investigations and criminal proceedings.

Annual plan The Director shall prepare an annual plan, including an estimate of revenues and expenditures, setting out how SARA intends to discharge its functions. The plan is to be prepared at least three months before the beginning of the financial year and shall include:

(a) objectives for the financial year; (b) any strategic plan for the financial year, whether or not relating to its

objectives; (c) priorities for the financial year; (d) financial resources expected to be available for the financial year; and

(e) the proposed allocation of those resources.

A copy of the annual plan is to be tabled in the National Assembly by the Minister of Legal Affairs.

Designating officials as customs, police and immigration officers

The Director may request the Minister of Finance to instruct the Commissioner-General to designate in writing the Director and other named officers of SARA as persons having the powers of a revenue and customs officer, consistent with Section 3 of the Customs Act. Similarly, the Director may request the Minister of Public Security to instruct the Commissioner of Police to designate in writing the Director and other named officers of SARA as persons having the powers of a police officer and an immigration officer, consistent with Part IV of the Police Act and Section 4 of the Immigration Act respectively.

Cooperation and collaboration Persons who have functions relating to the investigation or prosecution of offences are required to cooperate with SARA in the discharge of its functions. SARA may also cooperate and collaborate with other State organs/agencies, and any foreign government or international or regional organization in the prevention and investigation of loss and recovery of State property, including mutual cooperation with the Director of Public Prosecutions (DPP) and the Financial Intelligence Unit. The DPP and the Commissioner of Police shall, as soon as practicable, inform SARA of any criminal investigation or criminal proceeding involving State property which may become subject to forfeiture, confiscation or civil recovery. Similarly, as soon as practicable, SARA shall inform the DPP and the Commissioner of Police when commencing a civil recovery investigation.

SARA may enter into an agreement with any Government Ministry or Department, Public Authority or statutory body in Guyana for the collection, use or disclosure of information, including personal information. It may also conduct any appropriate investigation in conjunction either with the police or with any other person who is, in the opinion of the Director, a proper person to be concerned with it. SARA may also request and obtain professional and technical assistance or advice from such persons or organisations, whether local or foreign, as it considers appropriate.

Annual report As soon as possible after the end of each financial year, the Director is required to prepare an annual report setting out how the Agency has discharged its responsibilities. The report (to be laid in the National Assembly by the Minister of Legal Affairs) is to include:

(a) the Director’s annual plan for the financial year; (b) costs associated with the administration of the funds under SARA’s control, including costs of external audits; (c) amounts credited to those funds; and (d) assessment of the extent to which SARA has discharged its functions.

Code of Conduct and Code of Practice All staff members of SARA are required to comply with the Code of Conduct prescribed in Schedule II of the Integrity Commission Act. In addition, the Director shall prepare a code of practice for the discharge of the functions of the Director, staff of SARA and accredited financial investigators. The code of practice is to be laid in the National Assembly. A person who fails to comply with the code of practice may be subject to disciplinary action.