There is no question that monies held by NICIL belong to Guyana and should be paid into the Consolidated Fund
All the mouthings of President Ramotar, Finance Minister Ashni Singh and NICIL CEO Mr Brassington, will never legalise the illegality of the activities of NICIL.
Quite frankly, the whole of Guyana is now aware of the scampishness and skullduggery being carried on when NICIL’s directors and officers fail to deposit its revenues into the Consolidated Fund.
The starting point is Article 216 of the constitution which states that all monies raised or received by Guyana are to be paid into the Consolidated Fund. And this is how it should be in a normal, regular democracy.
There is no question that the monies held by NICIL are monies belonging to Guyana. NICIL is a government company within the meaning of Section 344 of the Companies Act 1991 because more than 51% of its share capital is held by government. Mr Brassington recently admitted this in court under cross-examination. Section 345 of the Companies Act 1991 applies mutatis mutandis to Sections 48 and 49 of Part VII of the Public Corporations Act relating to accounts and audits of government companies. Under Section 48 of the Public Corporations Act NICIL has to keep accounts to the satisfaction of the minister and the accounts are to be audited by an auditor appointed by the minister. The minister, under section 2 of the Act means the minister who has been assigned responsibility for public corporations. It is the understanding of the AFC that Dr Ashni Singh as Minister of Finance is the minister who has been de facto assigned responsibility for public corporations, thus creating quite a dilemma since he is also the Chairman of NICIL. I believe he is in a conflict of interest position because he cannot have ministerial supervision over a company for which he also holds the senior executive post of Chairman of the Board. This is ridiculous and makes a mockery of the statutory provisions which do not contemplate this situation.
But it gets worse! Section 346(1) of the Companies Act 1991 requires NICIL to submit to the Minister of Finance within six months after the end of each calendar year (ie, in June of each year) a report containing: (a) an account of its transactions in the preceding calendar year, and (b) a statement of the accounts of the company audited under the provisions of Sections 48 and 49 of the Public Corporations Act. This means that Dr Ashni Singh as both Chairman of NICIL and the responsible minister under the Public Corporations Act will in effect be submitting audited accounts to himself. This is a most ridiculous state of affairs.
The statutes intended that there be ministerial oversight of government companies. But here we have a situation where the Minister is overseeing himself, so to speak. Section 346(2) of the Companies Act 1991 requires that a copy of the accounts and the audited report of NICIL be printed and laid before the National Assembly not later than nine months after each calendar year, ie, by September of each year. This has not been done. It is significant that by virtue of Section 347 of the Companies Act, a company that is a government company cannot be exempted or, as it were, disapplied from the provisions of Sections 345 and 346.
Moreover, the government has been using NICIL as a tool to carry on commercial and investment activities. For instance, government commandeers lands from GuySuCo and then converts them into house lots, some of which it sells through NICIL. I need not mention the Marriot Hotel deal as the investment example.
This brings us to another illegal activity carried on by NICIL. NICIL is claiming to be a privately incorporated company under the Companies Act. Yet, in order to avoid or evade the payment of conveyancing costs and duties, it purports to effect conveyances of these properties by vesting orders made under the Public Corporations Act, when NICIL is not in fact or in law, a public corporation. So all these purported conveyances are null and void!
The irregularity of siphoning off huge sums of money into NICIL has created aberrations financially on how business is conducted by other government corporations. Take for example, GuySuCo. We all will recall what happened just prior to the last elections. Remember when the sugar workers were given an initial 3% increase in wages and then President Jagdeo later decreed a further increase of 5% making a grand total of 8%. GuySuCo was in a quandary as to where it was going to find this money to pay the workers, particularly when President Jagdeo directed Dr Singh not to advance any money to GuySuCo unless it finds the money itself. GuySuCo had not too long before concluded a contract with Tate and Lyle to supply Tate and Lyle with sugar. In order to raise the money to pay the sugar workers for this ‘elections increase,‘ GuySuCo had to persuade Tate and Lyle to advance GuySuCo monies for sugar which GuySuCo is still to supply to Tate and Lyle. This means that these advance revenues to GuySuCo which should have gone to the company for capital investment went to finance PPP electioneering carrots to sugar workers. And now the company is going to suffer. The monies for increasing wages in this sugar sector last year should have come from those NICIL funds! Better still from the Consolidated Fund, had they been placed there in the first instance. And the revenues from the Tate and Lyle sales would have gone directly into capital investment in the sugar industry in 2012, not through the $4 billion subvention or bailout which is now necessitated to keep the industry afloat.
In this disingenuous manner, the PPP’s politics drove Guyana’s economics – and will continue to do so – into serious errors. And this is separate and apart from how it used state resources for its partisan electoral advantage and, to Guyana’s disadvantage. Among other facilities, GuySuCo incurred great expense in providing transportation for PPP crowds during the elections campaign. GuySuCo’s fuel expenditure soared during the campaign period. This impropriety still did not realize a majority victory at the polls.
The AFC will continue its crusade and lobby in every quarter for transparency and accountability. This is the bounden duty of this generation of leaders. Earlier generations fought against the horror of slavery, and against indentureship. Then others fought against colonialism and for Independence. Recently, the fight was for one man one vote. But history, as the PPP would want us to believe, ought to end now that there is a modicum of electoral democracy.
Our efforts to reason and educate will be twisted and given the spin. We see that every day in the government newspapers, TV and radio. But with support from the private press, workers and businessmen, and especially a more discerning public yearning to understand matters of national import, the AFC will be relentless in this quest for full transparency and complete accountability from our present day sahibs and sultans.
Chairman of AFC