Author: Christopher Ram

Published on On March 24, 2020

There are three supreme organs of democratic power in Guyana: The Parliament which is made up of the President and the National Assembly; the President; and the Cabinet. The Cabinet has been dissolved and compliments of the CCJ, the President and his Cabinet are lame duck institutions. Moreover, David Granger’s moral authority has been severely damaged by the patently fraudulent declaration of results by the Returning Officer of Region 4 which the Chief Justice (ag.) has declared unlawful and unconstitutional. Given the opportunity to make amends, the Returning Officer compounded his illegality by what appears to have been fraudulent means. A Contempt Action against him has stalled. Then one of Granger’s candidates brought an action effectively to uphold the fraudulent declaration. That case is being heard by a different judge and Guyanese face the prospects of conflicting decisions from the court.

If the second judge accepts the arguments advanced by the lawyers for Granger’s candidate, the average Guyanese will be totally confused. Such confusion alone, will add to concerns on how the courts can be used to subvert democracy, undermining their confidence in the court system. 

Granger discredited the presidency when in an agreement with the Leader of the Opposition, he brought CARICOM officials to supervise the recount only to have the agreement scuttled by his GECOM nominees and by one of his own candidates. We cannot forget GECOM, a constitutional body responsible for the holding of proper elections. It has shamelessly discredited the entire elections by its clumsy and incompetent declaration process, exposing Guyana to imminent, international pariah status.      

Then there is the Guyana Police Force whose conduct in a number of events related to the elections has caused the recall of memories of Burnham’s goons – the Rabbi Washington-led House of Israel. With no Parliament, there can be no Budget and heaven knows what the Finance Minister is doing with the Consolidated Fund. So we really have only some basic features of a functioning state still in operation.

I had held the view following the No Confidence Motion (NCM) that Granger’s position as President had become unlawful and by virtue of Article 95 of the Constitution, the Chancellor of the Judiciary ought to have assumed the presidency. The CCJ however, by unfortunate and unnecessary language, gave Granger a respite. The situation concerning Granger’s legitimacy has again surfaced with compelling evidence that he has lost the elections. He is clearly hanging on by way of the shenanigans of his people in GECOM and his Party’s use of the court system.

GECOM’s mandate is to deliver results no later than fifteen days after the elections. It is now twenty-one days since the elections and it seems clear that the results can take weeks and possibly months, before the matter is finally resolved. Following that declaration, there will be a number of steps before the commencement of the Twelfth Parliament. The Minister of Finance will then have three months to present a Budget. There is no guarantee when normal spending will resume. Other constitutional bodies, the public service and state agencies will have to operate on a limited budget – hardly desirable in the first year of oil. Assuming that this is all done under the flawed declaration by the Returning Officer of Region 4, every state agency and public official will have to confront the wider question of their role and relationship with an illegitimate and illegal administration.

In this very grim scenario, some mention should be made of the Guyana Defence Force which is also a constitutional body, though like the other executive arms of the state, not a democratic organ. 

The oath taken by officers of the GDF is to “bear true and faithful allegiance to the State of Guyana … and to honour, uphold and reserve the Constitution”. One of the insertions to the 1980 Constitution made as part of the Herdmanston inspired constitutional reforms was Article 197A which is reproduced below:   

“(1) The State’s defence and security policy shall be to defend national independence, preserve the country’s sovereignty and integrity, and guarantee the normal functioning of institutions and the security of citizens against any armed aggression.

(2) The Defence and Security Forces shall be subordinate to national defence and security policy and owe allegiance to the Constitution and to the Nation. The oath taken by members of the Defence and Security Forces shall establish their duty to respect the Constitution.

(3) The Guyana Defence Force established under the Defence Act shall in the discharge of its constitutional responsibilities function in such a manner as to earn the respect and enjoy the confidence of citizens.”  

Quite what the defence and security policy of Guyana is, is not set out in any single document but I draw guidance from an autographed copy of Granger’s book National Defence – A Brief History of the Guyana Defence Force.  At page 39, under the caption Power, Granger’s opening words were “A major influence on defence policy – the constitutional factor – was derived in theory, from the House of Assembly and the Council of Ministers”. I rely on this not only because Granger has occupied the position of President, but also because Granger was the political commissar in the GDF during Burnham’s tenure. He must be taken to understand the concept and operation of the country’s defence and security policy and the GDF’s duty to carry out that policy set out in post-Burnham changes to the Constitution. 

The Guyana Defence Force has its own Act: the Defence Act Cap. 15:01. That Act is of course subordinate to the Constitution but it does provide for a Defence Board which includes many of the offices which have now become constitutionally and legally suspect, including the President and the Prime Minister. While the Act vests broad powers in the Defence Board, it also contains specific express and implied exceptions reserved for GDF.     

Commendably, the GDF has maintained a respectful silence over what might have been seen as a civilian matters. It has to be pointed out however, that the installation of any administration under a tabulation process widely regarded as rigged by both domestic and international observers, will cease to be a civilian matter – it goes to the root of our Constitution. In that scenario, it would be difficult to see how the GDF can continue holding to the view that the matter remains a civilian issue and still “earn the respect and enjoy the confidence of citizens.”  The possibility of Guyana ticking all the boxes of a failed state is becoming more likely. Making the unwelcome threat of sanctions all the more real.

Dear Editor,
There are four days before Nomination Day to be followed by fifty two days before elections for the sixty-five seats in the National Assembly – twenty-five for geographical constituencies (GC) and forty for the national top-up list. So far, apart from the APNU+AFC and the PPP/C, there are about a dozen parties which have announced their intention to contest the elections on their own, despite the general call that they seek some form of electoral alliance.

It has to be assumed that their leaders are confident that they can overcome the formidable hurdles in their way posed by the election laws, the resource challenges and the experiences of smaller parties in past elections.

The first hurdle, the Representation of the People Act, imposes on each party the requirement that it must contest a minimum of six Geographical Constituencies – which coincide with the Administrative Regions – accounting for thirteen of the twenty-five geographical constituency seats. But not any six since Constituencies 1, 2, 5, 7, 8, 9 and 10 only account for twelve seats. In other words, any party seeking to contest the elections has to include at least one of Constituencies 3, 4 and 6. While Constituency 4 accounts for seven seats, the other six of the thirteen have to come from five constituencies, even though Constituencies 3, 4 and 6 account for thirteen seats.

While the six-Constituency requirement is partly nominal – parties may choose to focus attention and resources on as few Geographical Constituencies as they choose the practical challenge is the requirement that each Party list must be supported by a minimum of three hundred eligible members for the national top-up list and one hundred a fifty members for each geographical constituency. In other words, at a minimum the list for each party has to be supported by twelve hundred voters, who have to be drawn from the respective Geographical Constituencies.

Another major challenge concerns resources. The large contractors, major companies and overseas supporters who contribute to elections funds are reluctant to donate to the smaller parties because of their perceived slim chances of winning, and therefore of rewarding their donors after the elections. Paradoxically, while the larger parties can campaign with outsized rallies, the smaller parties with very thin leadership and cadre of helpers have to knock on doors and plead with voters to support their largely unknown entities and leadership. The investment in time per vote is correspondingly much greater for the smaller parties than the bigger ones.

A more neutral issue is the system for the allocation of seats based on the proportional representation system known as the largest remainder using the “Hare quota”. The twenty-five Geographical Constituency seats are declared and their MPs are elected before the national top-up seats are declared. For all practical purposes, Regions 8 and 9 which have one seat each is effectively based on the first-past-the-post since the list with the highest number of votes wins that seat, regardless of the overall number of votes cast for that list nationally. Just by way of example, Geographical Constituency No. 8 in 2015 was won with 1,837 votes when the votes required for allocation of a seat to the National Assembly under the proportional representation system was 6,338. Had a smaller party taken that seat and nothing else, its candidate would have sat in the National Assembly with a vote as powerful as those earned by the other sixty-four members of the Assembly.

There are other requirements such as the fraction of one-third of the number of persons on the lists of candidates for geographical constituencies taken together to be female and a restriction (20%) of the lists without any female.

History too is not on the side of these smaller parties: unless they can win a Geographical Constituency seat, their chances for a National Top-up seat will depend on them coming out on top of the highest remainder after all full seats have been allocated. The pattern of elections since 1997 shows that votes for the small parties are usually wasted. In 1997, six small parties with 6,022 votes won no seat while one party with over one thousand fewer votes made it into the National Assembly. In elections 2001, three small parties captured 4600 votes but no seat. If the largest and smallest of the three had gone into the elections together, they would have easily won a seat. In 2006, one such party received 2571 votes but not a single seat. Election 2011 saw the rise of the AFC and the smaller parties coalescing around the PNCR in the APNU with only the TUF as a small party gaining 885 votes but no seat. Because the presidency is won based on the plurality of votes, Donald Ramotar won the presidency for the PPP/C in that year with a plurality of votes and a minority of seats – 32 out of sixty-five. Most recently, in elections 2015, the David Granger-led APNU+AFC came out on top with a majority of 4,506 votes over the PPP/C while four small parties gained a total of 2100 votes but no seat. We will know on March 2 whether history will continue to repeat itself.

Yours faithfully,
Christopher Ram

This was Published February 7, 2021

Introduction
It has been a week of fast-moving events. This past Monday (February 3), the London-based NGO Global Witness released a report `Signed Away’ in which it made the claim that had Guyana properly negotiated the 2016 Petroleum Agreement with Esso/Hess/CNOOC Nexen, it would have received some US$55 billion more than what it would receive under the contract it now has. By a strange coincidence, a Government sponsored report by Clyde & Co, a law firm out of the UK, appeared in the electronic media despite having as its first words Strictly Private and Confidential.

The Government of Guyana went into overdrive, describing the Global Witness Report as “baseless”, “sensationalist, agenda-driven and extra-ordinarily speculative.” Criticisms came not only from the Government but from a contributor in Forbes Magazine of the USA and Rystad Energy a research company from abroad and high profile local individuals such as Ms. Melinda Janki and Mr. Wesley Kirton. The comments from Forbes were logically understandable as it saw the report as an attack piece aimed at some of the biggest players in the oil and gas sector. Forbes saw it necessary to defend its friends in that sector.

Understanding numbers and projections Rystad argued that its 2% royalty and 50% share of profit will give the Government 60% of the profit from Esso’s various projects. For her part, Melinda Janki in a letter in the Stabroek News accused Global Witness of putting out “Lala-land estimates”. I doubt that Ms. Janki was aware that accompanying the Global Witness report was the extensive worksheets and report by OpenOil setting out the assumptions used in the projections – including from Rystad and the United States Government. While Rystad did not mention Global Witness in the press release it issued, it sought to counter pose Global Witness’ recommended 69% with its own strange math for his part, Kirton seemed to see the expressed concerns of GW as analogous to a marriage, and of course as arrogance and disrespect for us Guyanese. I wonder what he thinks of an ExxonMobil person Ms Brooke Harris writing the draft Cabinet paper justifying the give-away of the century to a foreign oil company on the 50th Anniversary of Guyana’s Independence Day!

The Government had the upper hand: Exxon had the Government I have read the Global Witness Report and the projections and long-term estimates by OpenOil. If I have any concern, it is that the estimate of US$55 billion is conservative and understated. It did not take any account of the abundance of gas and it used a median range of oil contracts for oil production which were negotiated before oil was found. Also omitted is that the Government has to pay the oil companies taxes for at least the next forty years from its share of oil profits. And significantly, by the time the 2016 Agreement was signed, there were two major world class finds and Exxon by its own admission was operating under an expired contract. The Government clearly had the upper hand. But Exxon had the Government. That was all that mattered.

Who paid Clyde? Now for the Clyde & Company report paid for by taxpayers. Like the Escrow Letter under the Bridging Deed, there are a multitude of annexes which are missing, including the Engagement Letter setting out the terms of reference and fees payable to the legal firm. But the Clyde and Co report seems to have had as a principal objective clearing the name of Minister of Natural Resources Raphael Trotman who stands accused of the most costly act of incompetence ever perpetrated on the people of this country.

Let us recall that by the time this report was commissioned in late 2019, oil and gas had been removed from Trotman’s portfolio. How he came to drive this Clyde process is quite a mystery. Yet, Trotman was allowed to select the law firm and to decide who they could meet: only two ministers – himself and Greenidge. He also decided which documents he would share with the law firm. As the Report states at paragraph 1.6.2 the Report was prepared on the basis of information provided by Trotman’s Ministry and the GGMC over which he has portfolio responsibility. One of Greenidge’s signal contribution was to give to the oil companies the assurance that US$15 million of the Signature Bonus would only be used to fund the proceedings with Venezuela in the International Court of Justice. In other words, at a minimum, to protect Exxon’s assets.

While Trotman’s list of interviewees did not include the oil companies, their presence pervades the report. We learnt that they “appeared” to put a lot of pressure on the Government to secure the 2016 Agreement in a short time scale, with different reasons Exxon’s subsidiary was driving to have a new agreement before the Liza-2 well results became fully known. “Arrogance and disrespect for us Guyanese”

The most important bit of information in the Report was the revelation that on the 25th May 2016, exactly fifty years to the day since Independence, while we were celebrating 50, Brooke Harris of ExxonMobil “provided by email a first draft of the Cabinet
Memorandum to Mrs. Homer (Mr. Trotman’s Legal Adviser)”. It did not stop there: Clyde states in its report that the Cabinet Memorandum was prepared along the lines of the Independence Day email and that draft versions were exchanged between Mrs. Homer and Ms. Harris right up to the 31st. May. It was submitted to Cabinet on June 3, the very next business day.

If ever Guyanese should be offended at – to borrow Wesley Kirton’s words – the arrogance and disrespect for us Guyanese, it is being told this by Clyde. Clyde also tells us that Trotman and Homer told their team that visited Guyana, that they received daily phone calls from the Contractor’s Consortium. And in the same Independence email, Ms Harris told Mrs. Homer that Esso had strong operational need to have the section 51 Order (tax variation) confirmed.

Conclusion
This is the first time in two years in which more than one Column was published in the week. It took a lot of effort to do three columns and I hope that Guyanese have a better understanding of the path down which the APNU+AFC has taken Guyana. One has
to wonder why the Government did and continues to do so many things in secret. We must remember that these things were not expected to come to light – the signing bonus, the Agreement, the Bridging Deed, the Escrow Letter and now the Clyde Report. It is the height or depth of stupidity for the Government to have considered the Clyde Report as exculpatory. For the excerpts cited above, it is damning. Laziness, absence of patriotism and a frightening complex for foreigners, prevented the Government – including President Granger – from doing basic reading.

The Government’s response to the Global Witness Report, its pattern of deceit and dissembling of facts, its obsequiousness to Esso in particular suggest that if by whatever means it remains in power, there is no hope of Guyana recovering from the infamous Contract, the product of a Cabinet Memorandum written by ExxonMobil. My hope is that the anger which the Bridging Deed revelation has aroused will be constructively managed and that Exxon will have been sufficiently exposed and embarrassed that it would voluntarily return to the bargaining table. I hope that I am not hoping in vain.

This Published on February 6, 2021

Two days ago, Column 84 set out the main provisions of the 2016 Bridging Deed. That Deed purported to keep alive the 1999 Petroleum Agreement signed by then President Janet Jagan. Effectively, it not only allows the three oil companies all the benefits under the 1999 Agreement, including precontract costs, and for the Government to pay their taxes in Guyana, but for those and enhanced benefits to run unchanged to 2056. No Parliament until then will have the power to make any law adverse to the interest of the oil companies, without compensating them. Nor can the Government stop paying their taxes to the GRA for them. It probably bears reminding that all three companies are incorporated in offshore tax havens and are merely registered in Guyana.

Two days ago, Column 84 set out the main provisions of the 2016 Bridging Deed. That Deed purported to keep alive the 1999 Petroleum Agreement signed by then President Janet Jagan. Effectively, it not only allows the three oil companies all the benefits under the 1999 Agreement, including pre-contract costs, and for the Government to pay their taxes in Guyana, but for those and enhanced benefits to run unchanged to 2056.

No Parliament until then will have the power to make any law adverse to the interest of the oil companies, without compensating them. Nor can the Government stop paying their taxes to the GRA for them. It probably bears reminding that all three companies are incorporated in offshore tax havens and are merely registered in Guyana.

As noted in Column 84, the Bridging Deed describes the Contract area for the 2016 Agreement as the Stabroek Block, “being the area covered by the 1999 Agreement”. Someone forgot to draw to Trotman’s attention that a new licence is expressly prohibited under section 22 (2) of the Act which states in mandatory language that “A petroleum prospecting licence shall not be granted to an applicant in respect of a block which is, at the time the application for the grant of the licence is made, comprised in a licence already granted.” It is clear then that no amount of legal gymnastics could circumvent this express provision prohibiting a second bite of the cherry.

The Government is in a catch 22 dilemma: if it argues, as it does in some places, that the 1999 Prospecting Licence had not expired at the time of the Application for the 2016 Licence, then section 22 (2) applies and there could be no second prospecting licence. And if it claims that the 1999 Stabroek Licence was expired, as Attachment “A” to the Bridging Deed indicates, it has two formidable hurdles. The first is that its purported Relinquishment is meaningless since under section 28 of the Act, relinquishment is only permissible “at any time when the licence is in force”. The second is that Attachment “A” to the Bridging Deed refers to the “expired Stabroek Licence Area”. That in my view makes the Deed ineffective since the 2016 Agreement could not be linked to a dead anything.

In his lame defence, Trotman embarrassingly argued that the Bridging Deed is like a savings clause, that it is quite normal. What Trotman does not seem to realise is that a savings provision has to be expressly permitted in legislation, or in some higher document, not in any agreement or instrument of lesser status.

Odd things happen

Here is another oddity: the Deed provided for the signing of the New Petroleum Agreement. The only trouble is that on the date of the Bridging Deed, the New Petroleum Agreement had already been signed and executed. Someone interfered with and initialled the date on the Deed but actually made it worse, and worse still, the change was not initialled by all the signatories to the Deed as is required.

A requirement set out in the Bridging Deed that the National Assembly approve an Order under s51 (1) of the Petroleum Exploration and Production Act, modifying certain specified tax laws to the Oil Companies, and the gazetting of the Order may not be so unusual, except that our sovereign body was expected to do so in within a time demanded by the oil companies. More importantly however, the Deed required the Minister of Finance to table a copy of the New Petroleum Agreement in the National Assembly when he brought the “tax modification” Order there. The Minister failed to comply. The inescapable inference is that he wanted to, and managed to hide the Agreement from the National Assembly and Guyanese until the Government was embarrassed into publishing it following the revelation of the Signing Bonus. Because the omission to table the Agreement did not prejudice the interest of oil companies, they too could not care less.

Looking after our interest

But the question must also be asked of the Escrow Agent Sir Shridath, a long-term consultant to the Government of Guyana: why did he not carry out his obligation to ensure that the conditions of the Bridging Deed were met by both sides? As a beneficiary of the public purse, did he not consider himself as having any obligation, fiduciary or otherwise, to the people of this country to see that undertakings made in their interest are honoured?

As a public official, the Minister is required to exercise discretion in making decisions. The Bridging Deed however took away much of his discretion under the law by setting out in advance what he would accept as Notices, and the text and extent of the Application for a Licence, including for the granting of a licence in respect of more than sixty blocks. By specific law, this has to be justified by special circumstances. Those who make Venezuela the bogeyman ignore the fact that many of the blocks awarded under the 1999 and 2016 Agreement are in undisputed waters and a significant number are much closer to Suriname than to Venezuela, and therefore raise no threat. And while the law allows the Minister a discretion in a section 51 tax exemption, the Bridging Deed made it into a condition.

Nothing however shows Exxon’s bad faith more than its announcement of a major find, one day after the Granger Government awarded them a tainted Petroleum Agreement made possible by the infamous Bridging Deed. It is either trickery or conspiracy. We Guyanese need to take our pick.

In concluding on the Deed tomorrow, the column will touch on some current developments.

This was Published on February 04, 2021

This Column regards the Bridging Deed conceived by some artful legal mind as going to the heart of the 2016 Petroleum Agreement – one of the first major economic acts of the Granger Administration. The handmaiden for the transaction was Mr. Raphael Trotman in his capacity as Minister of Natural Resources while its custodian or guarantor was Sir Shridath Ramphal. In an article in the Kaieteur News of February 1, 2018 seeking to justify the Administration’s refusal to make the Deed public, Trotman claimed that he needed to consult Sir Shridath Ramphal on the release of the document. He volunteered that there was nothing sinister about the Deed (with a capital “D”) and that Sir Shridath was selected as its guardian because the Government and Esso had confidence in him as a good person. In the subsequent two years, Trotman has been eloquently silent.
Column # 83 published last Friday revealed things about the Deed that challenge Trotman’s language. Because of my assessment of the Deed’s fundamental importance to the country, I sought and obtained the agreement of the senior editorial management of the Stabroek News to carry three columns this week – Tuesday, Thursday and the concluding piece on the usual Friday. This first part is
descriptive not judgmental, objective rather than subjective, narrative rather than critical. That was also the approach I took when in the earlier segments of this series of columns I dealt with the Agreement proper. Here are some of the key elements of the Deed. It was made on 29th. June 2016 and had four parties: the Government of Guyana and three oil companies – Esso Exploration and Production Guyana Limited (Esso), Hess Guyana Exploration Limited and CNOOC Nexen Petroleum Guyana Limited. They listed as their countries of incorporation The Bahamas (Esso), the Cayman Islands (Hess) and Barbados (CNOOC Nexen) and their registered office 62 Hadfield and Cross Streets, Georgetown, Guyana.

The Deed appoints as Escrow Agent Sir Shridath Ramphal of a Barbados address. It refers to an Escrow Letter dated the same date as the Deed sent from the Escrow Agent to the four Parties. The letter sets out the terms of the Escrow Arrangement whereby the Escrow Agent holds the Documents on behalf of the parties “subject to the satisfaction of certain conditions”. The terms “documents” and “Escrow Conditions” are defined only as having the meaning set out in the Escrow Letter.
The Deed is signed by Minister Raphael Trotman for the Government while the same persons who signed the 2016 Petroleum Agreement signed the Deed for the oil companies. There were two witnesses to each signature to the Deed while a single and
different person signed as witnessing the execution of the Petroleum Agreement. The Agreement was made on the 27th of June 2016 and the Deed was made on the 29th of June 2016.
In terms of contents, there is the Deed proper which runs to twelve pages. The Deed has the following attachments: Schedule 1 – Form of Notice of Intent to Relinquish; Schedule 2 – Form of Relinquishment Notice; Schedule 3 – Form of Regulation 28 Application; Schedule 4 – Section 51 (1) Modification (by Minister of Finance); Schedule 5 – Form of New Licence Application; Attachment “A” –Application for Petroleum Licence concerning the expired Stabroek Licence Area; and Part B – Form of section 14 (2) (a) Notice acceptance of conditions for the grant of a licence. Action/Decisions required under the Deed A – On the signing of the Deed Parties to procure that the Escrow Agent sign Escrow Letter and Parties to countersign the Escrow Letter. Parties to sign and deliver six copies of New Petroleum Agreement to the Escrow Agent for Registration at Deeds Registry. Minister was required to retain one of the Originals, a copy of which was to be provided to the National Assembly as part of the section 51 of the Petroleum Act with respect to taxation.
Oil companies to sign but leave undated two originals to the Relinquishment Notice and New Licence Application and deliver the signed originals to the Escrow Agent.
The Minister to sign and deliver to the Escrow Agent two undated originals of the section 14 (2) (a) Notice. Section 14 (1) deals with the notification of the granting of a licence while 14 (2) (a) deals with the acceptance of that licence; and within five business days from the date of the Deed Oil Companies to sign and deliver to the Minister a Notice of Intent to Relinquish with intended Relinquishment conditional on the following: The receipt of dispensation from Minister pursuant to Regulation 28 application. This regulation deals with modification of requirements in relation to the keeping of records, the surrender of records, and the maintenance of accounts.
The National Assembly to approve an Order under s51 (1) of the Petroleum Exploration and Production Act, modifying certain specified tax laws to the Oil Companies, and the gazetting of the Order. Esso on behalf of the Contractor Parties as well as the Minister to deliver Confirmation Notices pursuant to clause 4.2 of the Escrow Letter before the Escrow Termination Date. In the absence of the Escrow Letter it is not possible to ascertain other than by speculation what clause 4.2 is all about.
Following which the Minister to deliver to them, within thirty Business days, a confirmation note that Regulation 26 will be dispensed.
Before delivering the Confirmation Notice to the Escrow Agent, the Minister to give Oil Companies no less than five Business Days’ notice of his intention to do so.
Parties to coordinate with Escrow Agent to arrange a suitable Completion Date following satisfaction of the Escrow Conditions. The Deed defines the Completion Date to have the meaning given in the Escrow Letter. Column 85 to be published this coming Thursday will discuss some of the contents of the Deed.