…gov’t says in response to signing bonus court challenge
…contends Consolidated Fund includes public monies held at any other banks as directed by Minister of Finance

THE Government said the People’s Progressive Party (PPP) has miscomprehended the meaning of Consolidated Fund in the context of the fiscal management and accountability of public monies and revealed that the party when in government had opened over 300 bank accounts, similar to the one that is holding the US $18M signing bonus which they are now challenging.

In fact, the Government disclosed that one such account was the Citizen Security Strengthening Programme (CSSP) loan from the Inter- American Development Bank (IDB) of US $15M. This loan was never deposited in the official Consolidated Fund account by the Finance Minister prior to 2015, but rather in an official foreign- currency bank account in the Bank of Guyana (BoG) in almost the exact manner and terms like the signature bonus.
The Government’s comments are contained in its affidavit in response to the PPP-sponsored court action challenging the administration’s decision to place the US $18M signing bonus received from ExxonMobil into a special account.

The affidavit was prepared by the Attorney General Chambers. Last week, Finance Minister Winston Jordan said that the US $18M signing bonus received from ExxonMobil in 2016 remains in the Bank of Guyana (BoG) but has been invested in the US treasury bills and Canadian bonds where it is accumulating interest. Jordan told reporters on Friday that while the money has not been used, it has already accumulated US $36,169 in interest.

The affidavit in the name of State Solicitor, Ayana Mc Calman was filed on March 21 by Ms. Kim Kyte, Solicitor General and Oneka Archer- Caulder, Principal Legal Adviser for the State. In the affidavit the government said that there is a complete misconception and miscomprehension by the applicant Anil Nandlall, as regards the Consolidated Fund and what is the purport and meaning of Article 216 of the Constitution in the context of fiscal management and the accountability of public monies and the law and practice thereof.

“The Consolidated Fund, as provided by Section 51 of the Fiscal Management and Accountability Act of 2003, includes public monies which are kept in the Official Consolidated Fund Account and include deposits of public monies held at any other bank as the Minister of Finance may direct,” the Government contends.

“The Consolidated Fund is therefore an amalgam of Funds and official bank accounts from a variety of sources which contain revenues or public monies. The Consolidated Fund is not the sole, singular place for public monies to be deposited but also includes other Funds or official bank accounts as so contemplated expressly by sections 44, 45 and 51 of the Act of 2003,” the State argued in its response.

The Government explained that Sections 73 (1) and 73 (2) (d) of the Fiscal Management and Accountability Act 2003 authorise the opening of other accounts approved by the Minister, and specifically provide for the accountability by the Minister of Finance for such accounts in accordance with accounting standards and formats set out in the Regulations.
According to the affidavit, Section 73 (1) and Section 73 (2) (d) provide as follows: “73.

(1) The Minister shall, as soon as is practicable after the end of each fiscal year, prepare consolidated financial statements for the fiscal year just completed in accordance with accounting standards and formats set out in the regulations. (2) The consolidated financial statements shall consist of- in respect of any other accounts approved by the Minister, the financial reports required by the Minister.”

OVER 300 ACCOUNTS
Meanwhile, the government disclosed that examination of the books of accounts and records held at the Bank of Guyana, show that the previous Government prior to May 2015, followed the practice of opening official and other bank accounts for Government business which is an established lawful practice in accordance with Fiscal Management and Accountability Act 2003 and the Constitution of Guyana.

“The records show further that prior to 2015 there were in excess of 300 such accounts opened at, and in the custody of the Bank of Guyana,” McCalman said in the affidavit, which exhibited an extract of official accounts held at the Bank of Guyana.

The administration asserted that in accordance with good fiscal accountability practice, separate official bank accounts, in fact, have been created regularly pre- and post- Independence Guyana for a variety of State business undertakings, trusts and for loan accounts.

“Apart from the numerous examples shown in (extract of accounts), the Citizen Security Strengthening Programme loan from the Inter- American Development Bank of USD$15 Million is an example of one such, which was never deposited in the Official Consolidated Fund Account by the Finance Minister prior to 2015 when the Applicant was Principal Legal Advisor to the Government of Guyana and a Member of Parliament whose duty ought to ensure compliance with the laws.”

Additionally, the government argued instead, this amount of public monies was deposited in an official foreign- currency bank account in the Bank of Guyana in almost the exact manner and terms like the USD$18 Million Signature Bonus which is the bone of contention in this case.

“I am further advised and verily believe that experience has shown that there is wisdom in crediting such revenues or public monies into an official foreign currency bank account. Thereafter, disbursements therefrom have to follow the appropriation procedures as provided for in article 217 of the Constitution and relevant provisions of the Act of 2003,” Mc Calman said in her affidavit.

The Government contends that the USD $28 Million is received monies which are yet to be sent into the Consolidated Fund because the funds are in an “official” account as authorised by Sections 44 and 45 of the aforementioned Act of 2003. “…the USD$18 Million Dollars received as a signature bonus was paid by the Contractor Exxon Mobil under the Petroleum Agreement of June 2016 and was paid into one such official bank account at the Bank of Guyana and that the Second Named Respondent did so as the Minister responsible for finance and in accordance with the provisions of the aforementioned Act of 2003 and in accordance with the Constitution of Guyana,” the government said.

The administration asserted that it made an official decision for USD $3 Million of the fund to be used to develop and train technicians with critical job ready skills to be utilised in the petroleum sector. The remaining USD $15 Million is to be set aside for legal fees and expenses related to the resolution of the border controversy between Guyana and Venezuela, especially since the matter was referred to the International Court of Justice for judicial determination.

The Government said too, that it has stated publicly that when the time comes for Guyana to retain and pay the lawyers for these services in the ICJ, these monies will properly be appropriated, that is, drawn from the Treasury with Parliamentary authorisation and approval in accordance with Article 217 of the Constitution. “Article 217 of the Constitution prescribes that the Government cannot spend public monies unless the Expenditure has been authorised by Parliament through the necessary appropriation process,” the government stated.

The administration further stated that in keeping with Article 217 of the Constitution the said sum will be transferred into the Consolidated Fund to effect the appropriation for the purpose of paying the fees for those providing the legal services. Further, Mc Calman’s affidavit affirmed that President David Granger has since publicly stated that the said signing bonus will shortly be paid over to the Consolidated Fund to accommodate the payment of lawyers’ fees.

“I am advised and verily believe that in the circumstances the application herein is wholly misconceived. I am further advised by my Attorney- at- law, and do verily believe that the action herein is an abuse of the process of the Court, is speculative, vexatious, without merit and ought to be dismissed with costs,” Mc Calman stated.