Crucial Bill seeks to make SARA self-funding, hold staff members accountable

Aug 07, 2016 News

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By Kiana Wilburg

The draft legislation that will set the stage for the official establishment of the State Assets Recovery

Unit (SARU) is finally complete and the first round of consultations is set for Thursday at the Pegasus Hotel.
The comprehensive Bill is intended to give effect to the non-conviction-based asset recovery recommendations contained in the United Nations Convention Against Corruption 2003, which was ratified by the Government of Guyana in April 2008.
It therefore provides for the establishment of the State Assets Recovery Agency (SARA) which has as its primary function, the civil recovery of State property obtained through the unlawful conduct of a public official or other person, or any benefit obtained in connection with that unlawful conduct, by way of civil proceedings taken in the High Court for a civil recovery order.
The granting of a civil recovery order vests in the State, ownership of any property subject to the order. According to the Bill, SARA will have a Director with responsibility for the effective management and execution of its functions.

CIVIL RECOVERY
Experts who were instrumental during the formulation of the Bill stressed that it is very important to note that the cause of action is against the property itself and not against the person who holds or has an interest in the property. Thus, the person who holds the property, the subject of the intended recovery order, might not be the person who carried out the unlawful conduct, and a civil recovery order is not a conviction or a sentence.
It was explained by SARU that the proceedings are civil in nature and the civil standard of proof (the balance of probabilities) applies. SARA will, nevertheless, require cogent evidence to satisfy the Court that a property is the proceeds of unlawful conduct.
But to establish that property was obtained through unlawful conduct, SARU said that it will not be necessary to prove the commission of a particular criminal offence, by a particular person, on a particular occasion. SARU’s Head, Dr. Clive Thomas says that it will be sufficient to prove that the property was obtained through conduct of a particular type, e.g. corruption, bribery, fraud etc.
He said that this however, cannot be achieved solely on the basis that the person holding the property has insufficient identifiable lawful income to account for the extent of property he holds or has an interest in. He noted that the absence of any evidence from the person to explain the source of the property, or the giving of a false explanation, will allow the court to infer that the source was unlawful.
PROVISIONS OF THE BILL
The Bill contains seven Parts. Part One contains general provisions such as the short title, commencement and interpretation provisions. Part Two speaks to the establishment of SARA and its Director as a corporation sole, the appointment of a Director, Deputy Director and staff of SARA, and the terms and conditions of their appointment. This part contains provisions on how the SARA will be financed, through a budget approved by the National Assembly, and its transparency obligations, by requiring the Director to provide a detailed annual plan and annual report, both of which must be laid before the National Assembly. In addition, SARA staff will be required to comply with the Code of Conduct prescribed in the Integrity Commission Act.
Sections Six and Seven of the Bill set out the respective functions of SARA and its Director. SARA’s functions include the investigation, tracing and identification of State property suspected to be the proceeds of unlawful conduct of a public official or other person, and to institute High Court proceedings for the civil recovery of that property. The Bill also provides for SARA to be enabled to seek the recovery of such property wherever in the world that property may be located, and must also raise public awareness on the dangers of corruption and other crime.
As part of the need to maintain and upkeep public confidence in the criminal justice system, Dr. Thomas explained that the Director must, before undertaking civil recovery proceedings, consider whether the recovery of State property will be better secured by criminal proceedings.
He said that the Director and named members of SARA staff may exercise the powers of police, customs and immigration officers, if so designated by the relevant Ministers, upon the Director’s request. The Director will also be under a duty to ensure training in the operation of the Act is available to professionals and to ensure relevant staff are trained and accredited in financial investigation.
The SARU Head said that mutual cooperation between the Director of Public Prosecutions and Director of the Financial Intelligence Unit is a requirement, and the Commissioner of Police must provide such assistance as is requested by the Director.
He said that the Director may enter into binding memoranda of understanding with other Government or Public bodies, and is able to collaborate with any State organ, foreign government or international or regional organization, in the recovery of State property.
RECOVERY FUND
Part III of the Bill contains provisions for the establishment of a Recovery of State Assets fund, into which 25% of the value of recovered property will be credited, with the remaining 75% credited to the Consolidated Fund. This Fund is intended to make the SARA partially self-funding. The Bill sets out that the Director is thus authorized to use the funds to commence actions under the Act, to make certain payments e.g. to pay experts to assist him in carrying out SARA functions, to fund training and capacity building, or to compensate victims who suffered loss as a result of unlawful conduct.
(To be continued …)

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