Kaieteur News article, of Sunday 18th October 2015 titled “Forensic audit recommends criminal charges against Brassington—Minister Sharma” is premature when the basis of this assertion is from the unreleased preliminary audit report of Mr. Goolsarran, the appointed forensic auditor of NICIL.
On 30th September, 2015, NICIL received a draft preliminary audit report (“Preliminary Report”) on NICIL covering over 13 years of business, and which is currently being responded to. It is communicated to NICIL that other than to its Chairman, Dr. Maurice Odle, the Preliminary Report was not shared with the Government as yet. Mr. Goolsarran is awaiting NICIL’s responses that will enable him to finalize his draft. NICIL further understands that once the formal draft is submitted to the Government (via the Minister of Finance), NICIL will be able to respond to the final version of the Report, and its response will accompany the final Report.
Given the gravity of certain statements allegedly said by Minister Sharma, the management of NICIL wishes to submit its initial response. The facts contained in the Report will ultimately show that there has been and is no evidence of illegality, fraud, or corruption by NICIL. Further, the Preliminary Report does not allege any personal enrichment of any of the officers or directors of NICIL, including the CEO, Winston Brassington.
NICIL maintains that all actions taken by NICIL over the years on matters identified in the Preliminary Report, were on the lawful authority of its Boards (Privatisation Board or NICIL Board) and/or Cabinet.
Mr. Goolsarran’s main contention has been and continues to be that NICIL is subject to Articles 216 and 217 of the Constitution and therefore by extension the Financial Management and Accountability Act (FMAA). NICIL has and continues to refute the applicability of or violation of Articles 216 and 217 by NICIL. NICIL reiterates that the Preliminary Report does not allege corruption or fraud by the CEO.
Mr. Goolsarran’s only recommendation in the “preliminary report”, in respect of alleged wrong-doings, states the following:
“Institute disciplinary action against all those who were complicit in the violation of Article 216 and 217 of the Constitution, including the Board of Directors of NICIL, the former Minister of Finance and the previous Cabinet, as provided for under the following sections of the FMA Act: (a) Section 48—Misuse of public moneys; (b) Section 49-Liability for Loss of public moneys; and (c) Section 85—Liability of Official.”
Article 216 of the Constitution states the following:
“All revenues or other moneys raised or received by Guyana (not being revenues or other moneys that are payable, by or under an Act of Parliament, into some other fund established for any specific purpose or that may, by or under such an Act, be retained by the authority that received them for the purpose of defraying the expenses of that authority) shall be paid into and form one Consolidated Fund”.
Mr. Goolsarran’s broad positions in his Preliminary Report about actions prior to 2002 when he was the Auditor of NICIL, is repeated numerous times. Similarly, his publicly expressed objection to NICIL’s operations from 2002, is also reiterated in the Preliminary Report. Notwithstanding, Mr. Goolsarran recognizes that from 1991 to 2001, NICIL transferred $3.415 B to the Consolidated Fund. Between 2002 and 2012, over $12 B was paid as dividends from NICIL to the Consolidated Fund. Mr. Goolsarran also recognizes that the accounts of NICIL, prior to 2002, were “qualified” audit opinions but for every year since, NICIL has received “unqualified” or “clean bill of health” audit opinions.
Notwithstanding these facts recognized in the Preliminary Report, Mr. Goolsarran states that NICIL violated Articles 216 and 217 of the Constitution when it retained all funds and invested these funds. This argument, which contradicts the facts as stated by Mr. Goolsarran, is the basis of the above recommendation by Mr. Goolsarran.
NICIL has responded to various questions during the course of the forensic audit and refutes the position of Mr. Goolsarran on the following grounds:
NICIL has substantial legal advice that indicates that Articles 216 and 217 is not applicable to NICIL; further, that the application of Art. 216 and Art. 217, would cause NICIL to be in violation of the Companies Act and NICIL’s own Articles of Incorporation and Bylaws.
Specifically, “NICIL does not fall within the definition of ‘Guyana’ as set out in Article 232(1) of the Constitution and section 5 of the Interpretation and General Clauses Act, Cap. 2:01. As a consequence, Article 216 of the Constitution is NOT applicable to NICIL.”
NICIL's “clean” audit opinions for 2002 to 2013, is one form of evidence that the current Auditor General, who audits all of Government, does not consider NICIL to be in violation of Articles 216 and 217.
NICIL received advice in 2001 from private accounting firm, Ram and McRae that clearly showed, that NICIL prior to 2002, violated the Companies Act and its financial statements were not prepared in accordance with applicable accounting standards. Ram and McRae assisted NICIL is preparing its accounts in proper accounting form, after which it received a clean audit opinion. At no time, did NICIL receive advice that it had to deposit all of its revenue into the Consolidated Fund.
NICIL operates like any other state-owned entity, incorporated under the Companies Act. If it operates in violation of Article 216 and 217 of the Constitution, then all state-owned entities would be similarly guilty. Further, this would defeat the very purpose of having Government conduct commercial business via companies.
There is no legal precedent or court ruling that suggests that NICIL is obliged to deposit its revenues into the Consolidated Fund or that Articles 216 and 217 are applicable to NICIL.
It is unfortunate that the protocol for addressing the forensic audit is not being followed, and sensational public statements are being made without balance, much to the detriment of a fair and balanced audit and audit process. Incendiary accusations without specificity as to wrongdoings, lack any semblance of objectivity and is one form of prejudicing a fair and balanced audit process. Such actions are more akin to a “witch hunt” than to a fair, independent, impartial, professional, and objective audit process.