Cor­rup­tion And Scan­dals Ga­lore

Weekend Mirror - - FRONT PAGE - By Mo­habir Anil Nand­lall, MP At­tor­ney-at-Law


a week passes with­out this Govern­ment not find­ing it­self in the throes of a scan­dal. In fact, on most oc­ca­sions, one scan­dal erupts even be­fore the pre­vi­ous one sub­sides. At his press con­fer­ence held on the 13th day of Septem­ber 2017, the Op­po­si­tion Leader dis­closed two mas­sive scan­dals brew­ing with­out di­vulging much of their de­tails.

The min­ing blocks and De­mer­ara Har­bour Bridge

The first one re­lates to fam­ily, rel­a­tives, cronies and friends of a strate­gi­cally po­si­tioned Min­is­ter of this Govern­ment form­ing them­selves into a syn­di­cate to ac­quire min­ing blocks in the rich pe­tro­leum zone of Guyana, by uti­liz­ing their min­is­te­rial con­nec­tion. From the in­for­ma­tion re­ceived, it has been al­ready de­cided that these min­ing blocks, when ac­quired, would be dis­posed to one of the es­tab­lished oil com­pa­nies, at a whop­ping profit of $100M USD, to be dis­trib­uted among the ar­chi­tects of this syn­di­cate. It is ex­pected that the cru­saders against cor­rup­tion both in the me­dia and in civil-so­ci­ety or­gan­i­sa­tions will dili­gently and per­sis­tently pur­sue this ne­far­i­ous plot and will make pub­lic, the gory de­tails of this in­tended skull­dug­gery.

The sec­ond scan­dal to which the Leader of the Op­po­si­tion al­luded re­lates to the con­struc­tion and lo­ca­tion of the new De­mer­ara Har­bour Bridge. It is pub­lic knowl­edge that $150M was al­ready sourced di­rectly from the Trea­sury to con­duct a fea­si­bil­ity ex­am­i­na­tion for the best pos­si­ble lo­ca­tion for the bridge. No one knows whether these sci­en­tific en­quiries were ac­tu­ally con­ducted; if they were, who did them; at what cost and by what process of pro­cure­ment were the ser­vices of these con­trac­tors pro­cured.

The shock­ing dis­clo­sure made by the Leader of the Op­po­si­tion at his press con­fer­ence was that the West De­mer­ara end of the bridge will ter­mi­nate upon a plot of land in Ver­sailles owned by a long-time fi­nancier and leader of the PNC/Re­form, who has been very em­phatic in his ad­vo­cacy for a new De­mer­ara Har­bour Bridge, in a pro­posal ti­tled ‘Vi­sion 2030’.

In Hol­ly­wood, this may be de­scribed as serendip­ity. In Guyana, this presents fer­tile ground for com­pelling in­fer­ences to be drawn of cor­rup­tion and nepo­tism. Again, it is my ex­pec­ta­tion that these vul­gar­i­ties will be ex­posed fully by the per­sons to whom I made ref­er­ence above.

How­ever, the real scan­dal upon which I wish to fo­cus in this piece is a Cab­i­net de­ci­sion, an im­age of which I repli­cate here­un­der:

It ought to be clear that this Cab­i­net de­ci­sion re­lates to the con­tro­ver­sial and un­law­ful pro­cure­ment of drugs, con­trary to and in breach of the Pro­cure­ment Act, by the Ge­orge­town Pub­lic Hos­pi­tal Cor­po­ra­tion (GPHC) from Ansa McAl to the tune of $515,178,268, upon the di­rec­tions of Min­is­ter of Pub­lic Health, Volda Lawrence. It is im­per­a­tive that this doc­u­ment be scru­ti­nized to ap­pre­ci­ate its var­i­ous lev­els of de­cep­tion and sophistry.

1. Based upon the con­tent of the doc­u­ment, it is clear that this mat­ter was first con­sid­ered by Cab­i­net on a pre­vi­ous oc­ca­sion and trans­mit­ted to a Cab­i­net Sub-Com­mit­tee for con­sid­er­a­tion;

2. that it was con­sid­ered by that Sub-Com­mit­tee and re­turned to Cab­i­net for Cab­i­net to stamp it with some form of im­pri­matur/le­git­i­macy;

3. it is clear that Cab­i­net did so, us­ing re­mark­ably and ex­traor­di­nar­ily vague and ob­tuse lan­guage;

4. it should be ob­served that Cab­i­net scrupu­lously avoided the use of the word ‘AP­PROVED’, in re­spect of the re­port, which em­anated from its Sub- Com­mit­tee, which is the nor­mal par­lance used by Cab­i­net in such cir­cum­stances;

5. it should also be ob­served that the Min­is­ter of Fi­nance, in­deed, and, I think de­lib­er­ately so, did not seek Cab­i­net’s ap­proval; again, this is de­lib­er­ate; in­stead, he brought it for Cab­i­net to “note”; so it was brought for Cab­i­net’s “no­ti­fi­ca­tion” and not “ap­proval.”

Cab­i­net’s cover-up and cov­er­age

It is pub­lic knowl­edge that the to­tal value of the con­tract for drugs un­law­fully pro­cured from Ansa McAl is $605,962,200. My in­for­ma­tion is that $90,783,932 was al­ready paid to Ansa McAl by a pre­vi­ous Cab­i­net de­ci­sion.

This was clearly done when the con­tro­versy did not reach the gi­gan­tic pro­por­tions to which it even­tu­ally ex­ploded. I sur­mise that Cab­i­net found it­self in a co­nun­drum af­ter the con­tro­versy erupted and es­pe­cially when the mat­ter was trans­mit­ted to the Pub­lic Pro­cure­ment Com­mis­sion (PPC) for in­ves­ti­ga­tion.

The problem was fur­ther com­pounded be­cause de­spite the in­ter­nal wran­gling, which is emerg­ing from the PPC, in terms of who should be held re­spon­si­ble for the vi­o­la­tions of the Pro­cure­ment Act, it is abun­dantly clear that there is a unan­i­mous find­ing by that Com­mis­sion that the Pro­cure­ment Act was vi­o­lently breached. I have ex­pressed the view al­ready, which I re­it­er­ate now, that no Min­is­ter of the Govern­ment or the Cab­i­net has the au­thor­ity to waive or au­tho­rize the waiver of the Pro­cure­ment Act in re­spect of any trans­ac­tion to which it ap­plies.

Rec­og­niz­ing that he is be­ing faced with a fait ac­com­pli of an un­law­ful trans­ac­tion al­ready taken place, the Min­is­ter of Fi­nance, by this in­stru­ment, is now seek­ing cov­er­age from Cab­i­net be­fore he au­tho­rizes pay­ment of $515,178,268 to Ansa McAl.

It is ob­vi­ous that this sum would have to be with­drawn by the Min­is­ter of Fi­nance from the Contin­gency Funds, for which he will later seek the ap­proval of the Na­tional Assem­bly.

Min­is­ter Jor­dan and the Cab­i­net are ob­vi­ously pro­tect­ing them­selves and are ob­vi­ously in­vok­ing the prin­ci­ple of col­lec­tive re­spon­si­bil­ity of Cab­i­net in re­spect of au­tho­riz­ing an ob­vi­ously un­law­ful pay­ment. Un­for­tu­nately, for this Govern­ment, a Cab­i­net de­ci­sion can­not le­git­imize an il­le­gal­ity. Laws are made by Par­lia­ment and equally bind all. Cab­i­net en­joys no ex­cep­tion. If the Ex­ec­u­tive en­joyed such ex­emp­tions from the law then there would have been no need for laws to be passed by Par­lia­ment. Cab­i­net could have eas­ily made its own laws and se­cure in re­la­tion thereto, the Pres­i­dent’s as­sent, who is also the Chair­man of the Cab­i­net un­der the Con­sti­tu­tion. So in my re­spect­ful view, this Cab­i­net de­ci­sion is in­ef­fec­tive and void ab ini­tio. It has no bind­ing force in the eyes of the law and does not pro­vide the le­gal cover which the Min­is­ter of Fi­nance and Cab­i­net be­lieve that Cab­i­net en­joys. It is sim­ply a sham.

Cab­i­net’s no ob­jec­tion con­tin­ues

It is com­mon knowl­edge that the PPC’s Re­port on this mat­ter would be sub­mit­ted, shortly, to the Na­tional Assem­bly and will be dis­cussed or de­bated when the Na­tional Assem­bly re­sumes its sit­tings af­ter the cur­rent re­cess. It is my con­sid­ered view that the shenani­gan of the said Cab­i­net de­ci­sion is sim­ply an ar­ti­fice not only to sat­isfy the Min­is­ter of Fi­nance’s dis­com­fi­ture, but to also en­sure that all pay­ments are con­cluded in re­spect of this con­tract be­fore the PPC’s Re­port is con­sid­ered by the Na­tional Assem­bly and made pub­lic.

This is nec­es­sary in the event of any ac­tions taken by the Na­tional Assem­bly or in the Courts de­signed to pro­hibit that pay­ment. Those ac­tions will sim­ply be fu­tile, as pay­ments would have al­ready been made. How­ever, though pay­ments have been made, this trans­ac­tion will nev­er­the­less re­main ju­di­cially re­view­able. In the end, it will be recorded as one of the most egre­gious ex­hi­bi­tion of cor­rup­tion and rank il­le­gal­ity com­mit­ted in Guyana by a Govern­ment over the last 30 years.

There is a fi­nal is­sue that I feel com­pelled to ad­dress be­fore I close. It is that Sec­tion 54 of the Pro­cure­ment Act clearly in­tends for Cab­i­net’s role in the pro­cure­ment process to cease upon the es­tab­lish­ment of the PPC. This was the strong, con­sis­tent and com­pelling ar­gu­ment ad­vanced by Messrs. Khem­raj Ram­jat­tan, Carl Greenidge et al, when they were in the Op­po­si­tion.

In fact, they con­tended that it was the very rai­son d’être of the PPC. The PPC was es­tab­lished since Oc­to­ber 2016. Why is Cab­i­net still en­joy­ing a no ob­jec­tion role one year later?

This is any­one’s guess. It clearly con­tin­ues to pro­vide an­other av­enue for the APNU/AFC Govern­ment to en­trench them­selves in more ne­far­i­ous and cor­rupt prac­tices, like the Ansa McAl deal.

Need­less to say, the con­tin­ued role of Cab­i­net in the pro­cure­ment process is un­law­ful and con­trary to Sec­tion 54 of the Pro­cure­ment Act.

Per­haps they are await­ing my next le­gal chal­lenge.

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