Op-Ed: SARA and Illegalities


Below is an opinion piece by Attorney-at-Law, Member of Parliament and former Attorney General and Minister of Legal Affairs, Mohabir Anil Nandlall

The incompetence which permeates every sector of this Government is simply unparalleled in the English speaking Caribbean. It is as if they can get nothing right. Let us examine the State Asset Recovery Agency (SARA), as an example.

The SARA, after a long hibernation, is back in the news. Earlier this week, it was disclosed that SARA would be laying charges in relation to 25 cases within the next month. This disclosure came from Mr. Aubrey Heath-Retemyer, who is described in the press as the “Deputy Director” of the Agency. Although the SARA Act came into force since the 11th day of May, 2017, SARA remains mired in deep controversy. The serious questions, which were raised even before the Bill was tabled in the National Assembly by a wide cross section of society, including, the Parliamentary Opposition, to date, remain unanswered. Rather than clarify these important issues which have been highlighted, the Government chose to ignore them and proceeded to activate SARA.

Expectedly, within one month of its enactment, legal proceedings were launched challenging the constitutionality of several of the provisions of the controversial SARA Bill (now Act). These proceedings are still pending in the Constitutional Division of the High Court. If this challenge is successful, then everything that SARA would have done would become legally questionable, including, the impending charges. It would be interesting to see how the Government will navigate these technical legal issues. If any reliance will be placed upon the Attorney General, Basil Williams, to advise, the nation can be reasonably certain of the consequences.

Transitionary provision

Most importantly, the persons who currently hold the position of Director and Deputy Director of the agency, Professor Clive Thomas and Mr. Aubrey Retemyer, respectively, seem to be holding those posts, unlawfully. Having regard to the track-record of the Coalition Government, these persons are obviously enjoying handsome remuneration packages. The public is unaware of what these packages are, although public funds are being utilized to finance them. These persons may be obtaining those monies unlawfully because the Act provides for the Director and Deputy Director to be appointed by the National Assembly. Neither Thomas nor Retemyer were appointed by the National Assembly, although the Act is in force for over a year. The terms of their office are to be determined by the Parliamentary Committee on Appointments, as provided for by the Act. Again, this has not been done.

Section 106 of the Act is a transitionary provision: it provides for the Head of the State Asset Recovery Unit (SARU) to continue to act as the Head of SARA, but for not more than four months after the SARA Act comes into force. The SARA Act, as I indicated, came into force over a year now. Yet, Professor Clive Thomas continues to act as the Director of SARA under this transitionary provision. His continuation in office, therefore, is as illegal as that of the Deputy Director, who can only be appointed by the National Assembly under the Act and who was not. How can these two gentlemen, who are holding these offices illegally, lecture to this nation about illegality and entrusted with the responsibility of investigating and curbing illegality?

The other significant issue, which contaminates these two office holder, is their known and professed political connections. Professor Thomas is a leader of the WPA, one of the political parties in the Coalition Government. He is a renowned politician infected with political biases and prejudices. For the same reasons that I cannot be a Judge of the Supreme Court he cannot be the head of a Law Enforcement Agency. For over a year, prior to the establishment of SARA, almost every week, Thomas was quoted in the press as signalling whom he intended to charge and prosecute. At that time he was speaking for SARU, the precursor to SARA. Most of these threats were directed to PPP leaders and the business community. This was long before a single investigation had even begun. Therefore, preconceived notions have long destroyed his objectivity. How can anyone trust this gentleman to investigate fairly or to act with integrity and professionalism? Obviously, he will be thriving to prove his public pronouncements true, regardless.

Political affiliations

Mr. Retemyer is in no better position. He is quoted in the press, earlier this week, as conceding that he has political affiliation. Though he did not disclose to which political party he is aligned, it does not take a genius to figure out where his political allegiance lies. It certainly is not with the Opposition. However, he maintains that despite his political affiliation, he can act fairly. What he fails to understand is that the test is not subjective but objective: it is not what he thinks, but the perception, harboured by the ordinary

Guyanese, that is important. Quite frankly, a perception that he will take instructions from the Office of the President is a quite reasonable one to hold in the circumstances. After all, SARU was housed in the Ministry of the Presidency while he was a member thereof. He was appointed by the Ministry of the Presidency to SARU. That appointment still holds in SARA.

SARA was or is possibly still being housed within the Ministry of the Presidency. Minister Harmon conceded in the National Assembly that SARU’s budget is funded from the Ministry of the Presidency. So it is quite natural to conclude that Mr. Retemyer has political connections to the Government. These perceptions or realities will militate against Mr. Retemyer and he may never be able to convince an alert Guyanese population of his impartiality and professionalism in this office.

Messrs Tacuma Ogensey and Desmond Trotman, two longstanding leaders of the WPA were also employed by SARU, exacerbating the political contamination. There is no indication that they have not been transitioned over to SARA like their colleagues. Mr. Trotman was appointed as a Commissioner to the Guyana Elections Commission (GECOM). There has been no public disclosure that he has relinquished his position in SARU/SARA. He may be continuing to hold these two offices. Nothing is beyond this Government.

What I do know is that lawyers will have a field day at the appropriate time.



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