Broadcast authority board was appointed by president, records show
The Board of Directors of the Guyana National Broadcasting Authority (GNBA) was appointed by President David Granger, as opposed to the Prime Minister, and is therefore legally constituted, according to Chairman Leslie Sobers.
Section 4 (2) of the Broadcasting Act 2011 provides that all members of the board must be appointed by the President. However, a Government Notice in the Official Gazette, dated Thursday February 16th, 2017, suggested that it was the Prime Minister who made the appointments.
The Notice states that “Cabinet considered the abovementioned memorandum CP (2017)2:2:L submitted by the Prime Minister and approved the appointment of the Board of Directors of the following in the entity in the Prime Minister Sector, for a period of two (2) years with effect from February 1, 2017 to January 31, 20119.”
Sobers was asked at a press conference last Thursday whether this rendered the Board void. At the time, Sobers said that in his opinion, those circumstances would not render the Board void as the President is permitted to delegate his responsibilities in some circumstances, and that this could be one of them. The Act, however, delegates the role to the President, and does not provide for him to further delegate those powers.
Since the press conference, Sobers, having further addressed his mind to the matter, discovered that the appointments were properly made by the President. During a meeting yesterday with Stabroek News, Sobers revealed copies of the Instruments of Appointment under which each board member was appointed. The instruments also contain an averment by which Granger states that “In exercise of the powers conferred upon me by section (4) 2 of the Broadcasting Act 2011, I appoint (board member) to be a member of the Governing Board of the Guyana National Broadcasting Authority….”
Therefore, despite the seemingly misleading articulation within the Gazette, the President actually appointed the Board, thereby seemingly ensuring its validity.
Shadow Legal Affairs Minister Anil Nandlall has challenged the validity of the Board on the ground that it was appointed February 1, 2017 for a two-year period, which ended January 31, 2019. This period is also reflected in the Notice advertised in the Official Gazette. However, Section 5(1) of the Act provides that a member of the Board “shall hold office for three years…,” suggesting that the Board’s life, contrary to what is said in the Gazette, actually expires January 31, 2020. This issue will be determined by the court.
GNBA can prosecute
During last Thursday’s press conference, Stabroek News had also asked Sobers whether section 44 of the Act vested the Authority with powers to prosecute, as opposed to imposing a fine, or otherwise penalising persons who breached specific provisions of the Act. The question was posed in light of statements by Sobers that the Authority was considering how to better compel compliance with the Act.
Sobers, who had said that he had yet to address his mind to the question, said yesterday that having considered the issue, he is now of the opinion that GNBA has the power to commence a prosecutorial process where certain provisions of the Act is breached.
He said that the Authority may need to engage the Guyana Police Force and/or the Chambers of the Director of Public Prosecutions (DPP) regarding laying charges, but he agreed that ultimately GNBA would be the virtual complainant and prosecutor in matters where the Act has been breached.
Sobers was mindful, however, of the fact that such an undertaking would require the Authority to acquire legal counsel, which may pose an issue given the Authority’s finances. GNBA is funded through fees paid by Broadcasters, which, given the static number of broadcasters in Guyana, has not increased. Meanwhile, he added, the work GNBA needs to do to satisfy its mandate continues to expand.