The State Assets Recovery Bill (SARA) is designed to recover unlawfully acquired state assets from public officers, past and present, through civil proceedings, and is in consonance with the United Nations Convention against Corruption.
The Bill will also see the integration of the State Assets Recovery Unit (SARU) into SARA to make its operations more efficient, and will also empower the Director of the Agency.
This was made clear at a press conference today hosted by Attorney General (AG) and Minister of Legal Affairs, Basil Williams, S.C, Head of SARU, Professor Clive Thomas, Chief Executive Officer (CEO), Aubrey Retemyer and Consultant on Asset recovery, Brian Horne.
The AG will be requesting that the draft SARA Bill be read a second time at the next sitting of the National Assembly (April 13). The bill is likely to be passed, thereby establishing the SARA.
Those gathered at the press conference which was held at the Attorney General’s Chambers on Wednesday, April 12, 2017
The officials were unanimous in their sentiment, noting that when this bill is passed there will be positive action taken towards recovering state assets without placing heavy emphasis on penal judgment. They said that according to the United Nations Convention Against Corruption (UNCAC) each state must consider taking such measures necessary, allowing confiscation of property without criminal conviction.
“In the case of Guyana, we have been focusing on recovery because it is linked to development, and it’s the expectation of the people of this country that the assets generated by the state should be used in the interest of our development. This is no vendetta with anybody, it’s a matter of a natural course of action that over the years we have been losing vast sums of money from this country,” Retemyer explained.
Moreover, the bill seeks to investigate, identify, trace and locate property initially owned by the Government of Guyana. “The bill only assumes that a criminal offence has taken place as a condition for investigation of the possibilities for civil recovery and that criminal offence must involve the theft of government property,” Professor Thomas said.
Retemyer further explained that, “In many countries, and for years now, attempts were made to arrest corruption by simply dealing with the corrupt official. He or she might have been charged and sentenced, but very little emphasis had been placed on recovery (of stolen assets).”
Thomas said that some persons have been misleading citizens that the SARA bill is designed to criminalise individuals, more specifically past and present holders of public offices. However, AG Williams said that the undertaking of the SARA bill requires continuous intervention by the Supreme Court of Guyana and not the agency itself.
“You don’t have to prove the crime to a criminal standard, what you have to do is establish the conduct or the offence that took place up to the civil standard on the balance of probability, you don’t have to prove it against anyone, but you have to satisfy the court of the judge who is hearing the matter,” Consultant Horne noted.
Questions were asked as to how the implementation of this bill will address the matter of Former Minister Jennifer Westford who is currently facing prosecution. Horne said, in her case, “that is really a criminal matter and it’s being dealt with. There may be provisions under the money laundering legislation through which, if she is convicted, they may be able to recover whatever property she may have obtained as a result of the crime for which she must have committed.”
Meanwhile, two public consultations have been held, disseminating information to the public with regards to who will be targeted when the bill is implemented. “The issue of a constitutional right to property: we are protecting 100 percent, but you can’t have a constitutional right to stolen property and that confusion has been appearing in the media sometimes, giving people the impression that if we take back the property of the state that was improperly or illegally acquired, that we involve somehow or the other the taking away of property.”
Section 14 (3) of the Bill states that the funds generated by the agency will facilitate the discharge of SARA’s functions; compensate victims who would have suffered as a result of an unlawful conduct; transfer property to a foreign state or territory or share it pursuant to a treaty or agreement; to fund training and capacity-building as may be required for the agency; and for payment of fees to counsel, forensic experts, investigators, receivers and other professionals.
The Bill is a civil recovery and civil remedy one meaning it is non-conviction based. There are also provisions in the Bill for the establishment of a State Assets Recovery Fund which will see SARA utilising 25 percent while the remaining 75 percent will go into the Consolidated Fund.
It was drafted with input from representatives of the World Bank, the United Nations and Consultant Horne.