ChrisRam.net

Dear Editor,

For a columnist who does not usually respond, Peeping Tom has spent the past several days doing little else. In each of his offerings he has attempted to address the points I raised concerning President Ali’s farm. Tom either considers the matter serious, or he is troubled by the implications of what I wrote. Either way, we are agreed that it is no small thing.

I am told that my analogy is false; that a farm is not a crime scene; that on my reasoning every owner of a refrigerator must account for himself. I have to admit, I did not see the one about the refrigerator coming. But since he has a problem with Phala, I offer an example with some notable parallels – Nkandla. That involved the homestead of South African President Jacob Zuma. There were no missing dollars; no currency in the furniture; no stolen money; no criminal proceeds; no suspicious transaction – all elements which Peeping Tom tells us are the indispensable threshold. What it had, on 13^th  December, 2011, was a complaint from a member of the public, asking the Public Protector, under an Act by that name, to establish whether a newspaper report was true. A citizen wanted to know if what was published in the press was accurate. Two years earlier, the Presidency had met a similar report with a denial that State finances were used. There was unsubstantiated explanation. There were no documents. The reader may find the arrangement familiar.

The Public Protector investigated anyway. She was not obliged to prove anything first; she was obliged to find out. What she found – that the President had knowingly derived undue benefit from a swimming pool, an amphitheatre, a cattle kraal and a chicken run built at the State’s expense, on works whose cost had escalated to over R215 million – was the product of the inquiry, not its precondition. Zuma did not accept it. It took the Constitutional Court to hold, unanimously, that her remedial action bound him. He repaid R7.81 million.

Now apply Peeping Tom’s test. In December 2011 there was no credible evidence at Nkandla – only a newspaper article and a citizen’s question. On his reasoning the Public Protector had no business lifting a finger, and nothing would ever have been repaid. Yet that same inquiry cleared Zuma on one count, accepting that he had spoken to Parliament in good faith and finding no breach of the ethics code on that count. That is what inquiries do – they exonerate as readily as they indict. It is the President’s friends, not his critics, who should want one, for an inquiry is the only thing that can convert an assurance into a finding. Instead, we are offered the assurance and denied the inquiry.

Nor is this my invention. In The Public Protector v Mail & Guardian Ltd 2011 (4) SA 420 (SCA), the Supreme Court of Appeal upheld the setting aside of a Public Protector’s report – not because he had investigated without evidence, but because he had not investigated at all. The argument made on his behalf will be familiar: that the journalist had produced no evidence contradicting the Director-General, had not shown why his word should be doubted, and that a man of high office could not be questioned merely because a journalist disbelieved him.

Nugent JA gave it short shrift. Truth and deceit, he said, know no status or occupation. The hallmark of that failed investigation was that responses were sought from people in high office and “recited without question as if they were fact”, and an investigator in that state of mind is no more than a spokesman. There is no justification, the Court added, for telling the public it must accept that nothing improper occurred merely because nobody has proved the contrary. The investigator is not there to decide whether an onus has been discharged. He is there to be sure.

The same Court said something else that Tom should read. The politicians who asked for that investigation had no independent knowledge of anything. They had read the newspaper. That was enough, for as the Court held, a request for an inquiry must not be scrutinised as if it were a pleading.

Tom is right that a farm is not the offence, and that the circumstances surrounding the object are what matter. That is my point exactly. The circumstances here are that twenty acres of State land were leased to a man who is now Head of State, by a man who is now his Vice President; that the acreage is disputed between the President and the Leader of the Opposition; that the financing, the approvals and the tax treatment rest on assertion alone; and that beyond the lease unearthed by this newspaper, the President has produced not a single document. Tom mistakes the asking for the alleging. He has done so in every column, and I begin to suspect it is not a mistake. Nor is he finished: several of my points remain untouched, and at his present rate we may look for them by the weekend. I only hope he is not crowding out the other Toms. I am told there is more than one.

And let me save him some trouble. If a letter should shortly appear over a name we have not met, making these same points in this same order – that questions are not evidence, that he who asserts must prove, that an inquiry is a fishing expedition – the reader will have read it already, and will know what he is reading. I say no more than that.

Tom tells us that institutions worthy of the name should pursue facts. On that we agree entirely. My suggestion is for the process to begin.

Christopher Ram

Dear Editor,

In its column of Saturday July 11, Peeping Tom proceeds on a simplistic proposition. He argues that my call for a Commission of Inquiry into President Ali’s agricultural enterprise amounts to a “fishing expedition” because I have raised questions rather than produced evidence of wrongdoing. That is an attractive slogan. It is also a false premise.

He treats me as though I have accused the President of criminal conduct. I do no such thing. My position has been consistent. Where legitimate questions arise concerning the conduct of the holder of the highest constitutional office in the Republic, particularly where those questions relate to a substantial private enterprise operating in a sector directly affected by Government policy, those questions deserve independent verification. That is not an allegation of guilt. It is a constitutional principle.

In invoking concepts such as burden of proof and prima facie evidence, Peeping Tom conjures up a courtroom in a criminal trial. He is too clever not to recognise that the issue is accountability, not criminality. In doing so, he treats the President as though he were merely an ordinary businessman defending a private investment. Ali is no ordinary businessman. He is Head of State, Head of Government and Chairman of Cabinet. The Government over which he presides allocates State lands, formulates agricultural policy, grants tax concessions, administers environmental laws and exercises enormous executive authority. The standard of transparency expected of such an office-holder must necessarily be higher than that expected of private citizens.

Curiously, after devoting an entire column to my letter, Tom never addresses the questions themselves. He does not tell us how or when the additional lands were acquired, or the sources of his massive borrowings. Or whether all the necessary environmental approvals were obtained before development commenced. Or whether the President declared his personal interest before permanent tax concessions benefiting agriculture were introduced. Nor does he tell us of the financial implications of those concessions for the enterprise, the terms on which it was financed, or whether every statutory obligation has been fully discharged. Or whether his farm income, not being part of his “official emoluments”, is declared on his annual tax return, and taxes paid.

If Tom knows the answers, he should publish them. If he does not, he should still say whether he accepts that the Guyanese public has a right to the know.

Instead, he advances the remarkable proposition that because these questions remain unanswered, they should not be independently examined. That turns accountability on its head. He also suggests that because the President first acquired twenty acres some fifteen years ago, much of the controversy evaporates. It does not. The issue has never been the original twenty acres. It is the development of what is now a substantial agricultural enterprise by a sitting President exercising the highest executive authority in the State. The chronology answers none of the questions concerning the acquisition of the additional lands, the financing of the enterprise, the regulatory approvals, the tax concessions or the management of possible conflicts of interest.

Finally, Peeping Tom devotes considerable attention to explaining why a Commission of Inquiry may not be the appropriate mechanism. Reasonable people may differ on that question. If another genuinely independent process exists that can command public confidence and answer these questions transparently, I would welcome it.

My concern has never been the label attached to the investigation. It has always been the independence of the investigation. The President’s explanation deserves to be heard. It does not deserve to become the investigation, the evidence, the findings and the verdict.

In the new Guyana, where public office now carries unprecedented economic significance, the people of Guyana are entitled to nothing less.

 Christopher Ram