The Procurement ACT was violently violated

Sep 23, 2017 Letters

Dear Editor,
With regards to the ANSA McAl medical drugs scandal, 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 authorise the waiver of the Procurement Act in respect of any transaction to which it applies.
Recognising 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 authorises 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 It is obvious that this sum would have to be withdrawn by the Minister of Finance from the Contingency Funds, for which he will later seek the approval of the National Assembly.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 authorising an obviously unlawful payment. Unfortunately, for this Government, a Cabinet decision cannot legitimise 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.
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 corruptions and ranks as an illegally committed one 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, which 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.
Anil Nandlall

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The Procurement ACT was violently violated

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