He who asserts must prove

Aug 05, 2022 Features / Columnists, Peeping Tom

---

Kaieteur News – There is a maxim in our legal system that states, “onus probandi actori incumbit, namely”. Translated, it means, “he who asserts must prove.”

In criminal cases, the standard of proof must be beyond reasonable doubt. But in civil matters, the standard of proof is on the balance of probabilities.

Article 13, a civil society grouping, is accusing the PPP/C of corruption. According to reports in another section of the media, Article 13 is alleging that the PPP had accepted help from all and sundry and upon assuming office had moved to reward those who had helped it. The group is also alleged to have said that such reward took the form of plum appointments, steering contracts in a particular direction.

It is a common practice for political parties to reward their supporters with appointments. Indeed, one senior PPP/C operative has said that a member of a certain organisation was displeased that he did not get an appointment which he wanted. There is nothing corrupt about rewarding persons with appointments. But that alone should not be the basis for an appointment.

This column is on record as expressing the view that the PPP/C’s appointment of Charrandass Persaud as Guyana’s High Commissioner to India was bad optics. It has created the impression that Persaud was rewarded for his vote. The PPP/C should never have offered him anything since this tends to support the belief that he had a deal with them and is now being repaid for his vote.

But the appointment should not be deemed as bad. Nor should any civil society member who used his or her standing or position during the elections to lobby for a government job should be seen as corrupt. It may not be the right thing to do but it is not corruption in the manner in which the average citizen thinks about corruption.

Article 13 went on to mention the allegations made against the Vice President in Vice News and said it was looking forward to the President establishing a Commission of Inquiry into the allegations. But who made the allegations. Those who assert must prove.

And why should the President establish a Commission of Inquiry into allegations for which a prima facie case has been made out? Is Article 13 suggesting that anyone can be recorded saying something and that should be the basis for a Commission of Inquiry? One Senior Counsel has conceded that there is no smoking gun.

What will the COI investigate? There is no face to go along with the sound byte about the persons who alleged certain things about the Vice President. And it is believed that the same person contradicted his own story when he said that the Vice President’s hands are clean. So what is there to investigate?

The President had said that the allegations of money laundering should be investigated. But  these types of investigations are not telegraphed. They take years to complete and involve painstaking efforts in building a case. Do not expect therefore any COI into money laundering. That is not how such matters are dealt with.

Article 13 is alleging that contracts are being steered in a certain direction. It may have had in mind an entity which was involved in the Building Exposition. But Article 13 is not alleging that a contract may have been steered. It is asserting that contracts are being steered. “He who asserts must prove.”

A Public Procurement Commission has been appointed. The Commission is an independent body. It was established by the Constitution and is empowered to ensure that the procurement of goods and services and the execution of work (in relation to such procurement) is done in a fair, equitable, transparent and cost effective manner and in accordance with the law.  As such, the Public Procurement Commission has oversight powers in relation to the award of government contracts.

Article 13 should also be aware that the Regulations under the Procurement Act provides for persons to contest decisions of procurement agencies. So there is a range of options which would allow for Article 13 to call for a review of any contract which it feels has been steered in a certain direction.

If Article 13 feels that there is corruption in the award of any contract, it can present its case to the Public Procurement Commission. This could be one of the ways in which civil society organisations, rather than merely agitating, can help bring about improvements in governance.

If Article 13 finds that the Public Procurement Commission is pussyfooting with investigations or making feeble excuses, then it would be within its right to call for a dismantling of this Commission. Instead there can be calls to create a less costly body to investigate complaints about public procurement.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

 

 

 

---

---