NICA 7

NICA 7.

We are looking at pages 18-30 of the Thomas Report of August 2003. Mr Thomas considers how Kennedy Hodge handled the investment of NICA’s funds in the stock market. Mr Hodge had been appointed manager by the Board. He points out that Mr Hodge had never claimed to meet the high standard of management that the Prospectus had promised for its manager, especially in the area of investment in stocks. He had never been an active participant in the stock market. He had at best only some experience in investing in mutual funds or individual stocks and bonds.

The Board agreed to invest US$60,000.00 in overseas stocks and bonds. $40,000.00 were to have been placed directly with Salomon Smith Barney, and $20,000.00 to be invested through the Investment Partnership with Kennedy Hodge and George Kentish. The Partnership was to purchase $79,000.00 shares in a German company named Deutsche Telecom. NICA was to put up the $20,000.00. Kennedy Hodge was to put up $50,000.00. George Kentish would invest the balance of $9,000.00. On 8 November 1996, the amount of $40,000.00 was transferred from NICA’s bank account to Kennedy Hodge’s account. George Kentish and Kennedy Hodge signed the NICA cheque. It was supposed to have been $20,000.00, not $40,000.00. Kennedy reduced his personal investment from $50,000.00 to $30,000.00. When asked by Mr Thomas why he did this, he replied that he had made a mistake in writing out the NICA cheque! He had not immediately paid back the excess of $20,000.00 because he had a nasty headache! He did not pay it back the following day because he had not thought of doing that!

Everything might have been forgiven if the Partnership had made a profit, and NICA had been handsomely rewarded for permitting Mr Hodge to unilaterally change the verbal agreement. But, according to Mr Thomas’ research, that is not what happened. If the proceeds had been divided in the ratios agreed for the Partnership, NICA should have been paid $53,165.00, a profit indeed. The amount Mr Hodge actually paid to NICA was $42,927.88. He paid his family company, Dolphin Enterprises Ltd, $132,911.00, and George Kentish $23,924.00. He paid himself 5%. He took this out of NICA’s share. He never told the Board. When asked by Mr Thomas about it, he explained that he had paid NICA for the 5%. He explained to Mr Thomas that Dolphin had always been the 63% partner. Mr Thomas concluded that, based on the information provided, Mr Hodge had no authority to sell NICA’s asset to himself, and, in any event, there is no indication he ever paid for it.

It was not acceptable conduct for the manager and the Chairman of the Board to have arranged this Partnership with their company, no matter how acquiescent and forgiving the Board was. It was improper, even if there had been no fiddling with the figures and the pay outs. It was wrong for the company funds to have been invested through a personal account of the manager, and not through a properly set up Partnership account. Mr Thomas concludes that Mr Hodge’s behaviour was like a man accountable only to himself. In any business organization that should never be the case. In a public company, he opines, that is diabolical. That is strong language, indeed.

NICA 6

NICA 6.

“Investment” was one of the principal activities planned for NICA. Its Prospectus offering the shares to the public said so. Its incorporation documents said so. The Prospectus said, “The company’s business and affairs will be directed by a Board of Directors of accomplished persons who have a wide and varied experience in finance and investment. The company will be administered by a competent management team that possesses the qualifications, knowledge and ability to make the company a sound and successful enterprise.” You would have thought that this activity would have been handled with care over the life of the company. It was not to be. The Thomas Report, commencing at page 17, documents the haphazard and careless way that investment decisions were made. “During its thirteen years of existence, the Investment Committee in some instances functioned inadequately, and the company failed to properly document its investment policy. . . This deficiency may have resulted in inappropriate investment decisions in some instances.”

The Report, at pages 18-30, gives an example of carelessness and unprofessionalism. An Investment Partnership was entered into by the company. Mr Thomas could find no minutes authorizing the partnership. Enough of the Directors assured him that they remember it being agreed. He concluded that the Board had agreed on it. He found that the partnership arrangement was not in keeping with generally accepted partnership arrangements. It was not in writing. Yet material sums of money of a public company were being invested. The partnership consisted, if you can believe it, of the following persons: NICA itself, George Kentish the Chairman of the Board, and Kennedy Hodge who was at the same time a Board member of NICA and effectively NICA's manager.

It was Mr Hodge who suggested the partnership arrangement with NICA. When cheques came to be signed to invest money in the partnership, Mr Hodge and Mr Kentish signed the cheques. They signed on behalf of NICA while at the same time handling their own investment in the partnership. Mr Hodge used his private investment account at Salomon Smith Barney to handle the investment arrangements. There is no indication that the Board ever knew that the entire transaction was carried out using Mr Hodge’s personal account.

As Mr Thomas points out, if Mr Hodge had unfortunately expired, NICA would have lost its entire investment, as the transaction was carried out via Mr Hodge’s personal account. Mr Thomas opines at page 18 that it would have been appropriate that both Mr Hodge and Mr Kentish should have removed themselves as representatives of NICA when the partnership was established, due to their personal interest. The fact that the Board did not insist on written rules and procedures governing the investment partnership permitted Mr Hodge to alter the arrangement from time to time without anyone knowing whether what he was doing was in keeping with the agreement.

It might fairly be commented that the whole arrangement was all so unprofessional as to be reminiscent more of a Mickey Mouse cartoon than a Board of Directors at work protecting the shareholders’ investment. It was the exact opposite of what the promoters had promised in the Prospectus would happen. That’s my comment, not Mr Thomas’.

NICA 5

NICA 5.

The National Investment Company of Anguilla Ltd started operating in 1989. It raised EC$5 million from members of the Anguilla public and others in a public offering of its shares. In its prospectus it promised to carry on a wide range of financial, commercial, trading, professional, and other services. As a result of incompetence, mismanagement, lack of transparency, and the failure of management to follow statutory provisions which protect the rights of shareholders, creditors and the public interest, large sums of money were lost.

In the year 2003, the father and son team of Bob Rogers and Carlyle Rogers commenced litigation in the High Court of Anguilla in suit No 29 of 2003. They complained about the state of affairs, and asked for an Investigator to be appointed. The Court appointed chartered accountant Avondale Thomas to make an investigation. He found gaps in the company’s records which made it difficult for him to discover all the damage that had been done. As he explains in his Report filed in the High Court in August 2003, he was not doing an audit of the company’s accounts. He was merely investigating the company’s records and documents with a view to making recommendations for improvement. He comments at page 5 and onwards on a number of his findings about the records.

Land documents. The company owns 36 acres of land at Gibbons Estate and 2 acres at Sandy Ground. Mr Thomas was unable to locate in the company’s files any Land Certificates, survey maps, receipts, or transfer documents relating to either of the properties. Eventually, the newly appointed company secretary, Marva Thompson managed to get copies for him at the Land Registry. Mr Thomas discovered that the lease of the Sandy Ground property to Anguilla Rums had expired some years ago. No new lease had been put in place.

Jem Homes Inc. NICA invested money in this company. The money was lost. Mr Thomas was unable to locate the records relating to this investment. He eventually found some documents, but when he raised a number of concerns about them, he was told the documents belonged to Kennedy Hodge’s family and not to NICA.

Board Minutes. Chairman George Kentish revealed that minutes of Board meetings were not always kept. When they were kept, they were not always brought to the next meeting for ratification. When they were kept, they were not always properly filed and kept in a secure location. This is contrary to the provisions of the Companies Act, which requires that minutes of all Board meetings be kept.

Accounting Records. These were kept in a grossly inadequate state. As a result it was not possible to evaluate the financial position of the company for eight years or to make decisions on the basis of properly constructed financial data.

Audit Statements. Under section 128 of the Companies Act, the Directors are obliged to place before the shareholders in annual general meeting the report of the auditors of the company’s financial statements. The Directors were in clear breach of this statutory provision. No financial statements had been presented since those of 1994.

The situation described above is appalling. It reveals a rudderless and leaderless company entrusted by thousands of Anguillians with, in some cases, their life savings. Instead of hiring competent managers and setting about a planned development of the company’s assets, the Board acted like a volunteer football club, nickel and diming their auditors and staff to death. In subsequent posts, we shall see how they minded the pennies while squandering the hundreds of thousands of dollars.

NICA 4

NICA 4.

Bob Rogers and Collins Richardson are two irate shareholders in the National Investment Company of Anguilla Ltd. They have asked me to look into the status of NICA. The first thing we learned is that the company has been again struck off the Register for non filing of its Annual Returns over the past few years, and does not exist any more. Technically, its assets are vested in the Crown as not belonging to any known person. We are waiting to hear from the Directors that they have remedied the situation and done the necessary filings to bring the company back into good standing.

Meanwhile, we are looking at the Report prepared by Avondale Thomas concerning the performance of the Board of Directors of NICA. He dealt with their conduct previous to his appointment as Inspector under the Companies Act by the High Court Judge of Anguilla. The Thomas Report was filed in the High Court and in the Registry of Companies in August 2003. It has been available for all to read since that time. I know that Bob Rogers has been walking around the island handing out copies to anyone who would take the time to read it.

Mr Thomas came to a number of damming conclusions about the functioning of the Board of Directors. His most extreme comments are reserved for Kennedy Hodge. He says of Mr Hodge,

“. . . I found his approach to the management of the business, reckless and unorthodox on many occasions. In addition, I have found his explanations to some questions asked in my interview of 13^th June 2003, and 28^th July 2003 to be far-fetched, contradictory, unconvincing, petty and bizarre in some instances; particularly in relation to handling company funds, Saloman Smith Barney, and Jem Homes Incorporated investments. The Directors may want to consider his behaviour in light of the stipulations of section 97(1) of the Companies Act, RCA C65.”

What did Mr Thomas mean by his reference to section 97(1) of the Companies Act? It does not take a lawyer to interpret his words for you. His words are pellucidly clear when you read the sub-section. It says,

(1) Every director and officer of a company in exercising his powers and discharging his duties shall—

(a) act honestly and in good faith with a view to the best interests of the company; and

(b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

Those are statutory duties owed by a director to his company. It is more than a contractual duty. Breach of a duty invites a law suit to enforce it or to be compensated for any loss suffered as a result. It seems to me that Mr Thomas was saying that the Directors should consider bringing legal proceedings against Kennedy Hodge for the loss and damage that his actions caused the company. The law suit would have been based on his breach of the duty of care that he owed to the company. The Directors do not appear to have taken legal advice. At any rate, they brought no proceedings against him.

In our next post, we shall look at some of the findings Mr Thomas made against Mr Hodge that made him make such a strong recommendation as he did above.

NICA 3

NICA 3. NICA is a public company. It raised $5 million from mainly Anguillian members of the public on the promise that it would carefully invest the money raised to produce profits for its shareholders. NICA is obliged by the Companies Act to produce audited accounts to the shareholders every year. It had not been doing so for many years. It had not been paying dividends to its shareholders. By the year 2003, according to the Annual Return filed with the Registrar of Companies, the Directors were Marcel Fahie, Kennedy Hodge, Cecil Niles, Anne Edwards, Vida C Lloyd, and Vivien Vanterpool. The last previous Return filed appears to have been in 1997. I do not have a copy of it, so I am not sure who the Directors were in the earlier years. Those who resigned from the Board for one reason or another included, Rev John Gumbs, Courtney Devonish, and George Kentish. I can recall that Mitchell’s Chambers were the attorneys for the company, probably up to the date those Chambers closed in 1999.

In High Court suit 29 of 2003, two shareholders Bob Rogers and Carlyle Rogers brought proceedings against NICA. They asked the Court to appoint an Inspector to examine the books and records of NICA and to report to the Court on the state of the books and records and the reasons for the default of the Directors in not placing an Auditor’s Report before the shareholders since 1994. The Court made the order as requested. It appointed Avondale Thomas, a chartered accountant of Antigua and Montserrat to be the Inspector and to lay his report before the Court. There was no other remedy sought of the court. The Court was not asked to wind up the company or to make any other order than to appoint an Inspector.

Mr Thomas filed his Report in August 2003. The Thomas Report has been in circulation in Anguilla for nearly four years now. In it, Mr Thomas described the maladministration of the previous Directors. He made recommendations for improvement. We want to look at some of the findings. At the outset, it is important to note that he does not find there was any theft or embezzlement of funds. He finds there were inefficiencies. He finds that the Board of Directors failed collectively in their fiduciary duty to manage the business to the standard expected of a public company. He reports that the evidence of this failure is compelling. The Directors failed to ensure the company maintained the expected standard in the area of accounting, investing, and record-keeping. He found they failed to meet their statutory obligations to shareholders, creditors, and to the Registrar of Companies in the laying of annual audited financial statements. Bob Rogers tells me that the judge, in the last sitting on the matter, advised the shareholders that she had done all she could to assist them in the suit before her. If they wanted more remedies of the court, they would have to bring other proceedings.

What did the shareholders do as a result? Did they instruct the company to bring proceedings against the defaulting Directors? Did they clean out the stable? Did they elect a new Board? No, as I understand it, they elected some of the same Directors back onto the Board. Calvert Carty replaced Cecil Niles as Chairman of that Board. Matters continued as before. They continue as before up to this date. Did the new Board of Directors lay the Thomas Report before the Attorney-General and demand that he instruct the police to begin a criminal investigation into the matters revealed? No, of course not, the new Board included some of the same implicated Directors!

No Annual Return of Shareholders and Directors has been filed since the last one was filed by the new company secretary, Marva Audain-Thompson in June 2004. There was another general meeting in the year 2005. New Directors were elected. Some old ones were re-elected. No Annual Return was filed evidencing the new Board. No audited accounts have been filed. No report has been made to the shareholders. No word of any kind has come out of the Board of Directors since they were appointed. So, if in this series of posts examining NICA we are to apportion blame, let us lay the first blame at the feet of the shareholders. The shareholders have failed to take the appropriate degree of care in appointing members of the Board of Directors! In the next post, we will begin looking at some of the various findings.

NICA 2

NICA 2. The National Investment Company of Anguilla Ltd is a scandal. It is a public scandal. It was floated by the National Bank of Anguilla as a vehicle to persuade Anguillians to invest their savings to make them grow. It raised five million dollars from the public based on a prospectus to this effect. This was about twenty years ago. The company has never declared a profit, and has never paid a dividend. George Kentish was the first and longest-serving Chairman. He was followed by Cecil Niles, who served for only a short time. The current Chairman is Calvert Carty. Certified public accountant Marva Thompson is the present Company Secretary.

Bob Rogers called me to visit him at home on Thursday. His sight is not as good as it used to be. He is not able to get out. He is very concerned about NICA and what the present Board of Directors is doing. He was very upset when I told him that the company has been struck off the Register for non-payment of its annual filings. It will now cost $1,500.00 to put back on the Register, according to Lanston Connor, the Registrar of Companies. That does not include the filing fees for the Annual Returns of shareholders and directors missing since the year 2004. The company is in default of filing the 2005 and 2006 Returns, for which it has been struck off, and the 2007 Return will be due in a few weeks. All its assets are now vested in the Crown as bona vacantia, or property without an owner. Technically, the company does not exist.

Mr Rogers gave me a copy of the 2003 Final Report of Avondale M Thomas, the Inspector appointed by the Court in suit No HCV 2003/0029. He tells me that it will make interesting reading. He tells me that he does not understand why no one has gone to jail as a result of it. We shall look at it. It is a court document. It is filed in the Registry. It is a public document, not a private one. I shall post bits of it on this Blog over the next few days. I shall comment on it as we go. I shall give you my views on how the members of the Board have discharged their duty to the company and its shareholders. I want to hear from you what you think of it.

In the meantime, can a member of the Board of Directors please go down to the Registry of Companies, and put the company back on the Register. Do not forget to file the Returns showing how you called annual shareholders’ meetings to have yourselves re-elected each year!

United Front - Unfinished Business

United Front – Unfinished Business. In a moment of boredom, and with nothing more interesting to do at the time, I was trolling through the 2000 campaign Manifesto of the United Front political party. The United Front is our governing party. A Manifesto is a political party's list of promises they make to encourage the public to vote them into power. The United Front won the elections on the basis of the promises they made in their 2000 Manifesto. Promises are meant to be kept. In the absence of a good excuse, we tend to think very poorly of persons who do not keep their promises. The United Front are now in their second term, having won re-election in 2005. I idly turned to examine the list of the promises they made in their 2000 Manifesto. I was struck by this list of unfinished business:

Excerpt from the United Front 2000 Manifesto:

“Development and refinement of Codes of Conduct for:
a) Ministers and other members of Executive Council;
b) Members of the House of Assembly; and
c) Politicians in election campaigns;

Creation of the office of Ombudsman;

Reintroduction and development of community councils and consideration of the decentralization of responsibility for some local community services;

Funding for local community based democratic agencies involved in governance;

Development of constituency offices for elected representatives paid for or subsidized by the Government;

Review the powers of Executive Council and of the regulations governing its operations;

Review the policy on appointments to statutory boards and committees to ensure that the selection is more participatory;

Establishment of a process of public hearings, referenda or other mechanisms to involve the public in making decisions on major political, economic or social issues inclusive of large-scale economic or social development proposals.”

Out of curiosity I then turned to their 2005 Manifesto. I was disappointed to see that there was no reference to most of these issues in the 2005 Manifesto. None of these promises has been kept. No one in government has even mentioned them again after the 2005 elections.

All of these were significant promises on which the governing party was elected. I wonder what caused them to lose their importance. Why do we not complain that the platform upon which we elected this government is not being carried out? Could it be true, as many cynics claim, that Manifestos are useless documents that no one reads after the election is over? Has the opposition been silent because they also want to make empty campaign promises that they do not expect anyone to hold them to? Is the press quiet because no one writes in to complain? I am complaining. I would like someone in government to tell us what they are going to do about these matters before the next Manifesto is published. There are only three more years left before elections are due!

Public Boards and Committees

Public Boards and Committees. We have a bad habit in Anguilla of being very generous and forgiving. It is a bad habit because we are dreaming if we believe that we are still living in the days when we were all so poor that it was no point in stealing from our friend or neighbour. In those days, we excused their peccadillos and peculations because they were all our close relatives, and “there but for the Grace of God . . .” That state of affairs is now over. There is money and land to be wasted if not stolen. A generous and forgiving nature must be surrounded and protected by vigilance. We must demand the highest standards of those entrusted with public funds and interests.

Prominent among these are the different boards and committees. Some were committees set up by government. Some are statutory corporations. Some are the boards elected by the shareholders of public companies. There are other public institutions of all kinds. All of them are invested with the public trust in relation to public property and assets. Some of them are responsible for hundreds of thousands of dollars. In some cases we have entrusted them with hundreds of millions of dollars.

As a start, it might be worthwhile to do a little study of the public boards and committees of Anguilla. We ought to know who they are, what they are paid, and what they have done recently to justify their existence. They are in receipt of public funds one way or another and they are saddled with a duty of trust to the public.

During last year, we heard from time to time of the following, in alphabetical order:

Airport Project Board

ALHC School Board of Governors

Anguilla Animal Rescue Foundation

Anguilla Archaeological and Historical Society Ltd

Anguilla Chamber of Commerce and Industry

Anguilla Community Foundation

Anguilla Development Board

Anglec Board

Anguilla Health Authority

Anguilla Mortgage Company Ltd

Anguilla Social Security Board

Anguilla Social Security Investment Committee

Belonger Commission

Boat Racing Committee

Caribbean Commercial Bank Ltd

Carnival Committee

Land Development Control Committee

Malliouhana-Anico Insurance Co Ltd

National Bank of Anguilla Ltd

National Investment Company of Anguilla Ltd

Poor Law Board

Ports Board

Public Service Commission

Public Service Integrity Board

Red Cross

Tenders Board

Tourism Investment Committee

Tourist Board

Webster Park Committee

The lizard’s seeing-eye that illustrates the top of this post indicates that I am asking you to be my seeing eye. This post requires any helpful response you can make. Am I missing any boards or committees? Do you have any information on who are their present members? Do you know what they are paid? Have you any idea what they have done recently to justify their existence? Is there any shadow surrounding any of their activities?

Please send me an email at the above address. We will then look at them one by one in subsequent postings.

Unethical Lawyers?

The Chief Minister laid down a challenge when we met on Friday last. He said that I was not really dealing with corruption and lack of ethics until I dealt with the legal profession. I told him I accepted the challenge. If I could find any evidence of unethical conduct, I would expose it, and more.

So, now I am extending to you my readers an invitation to help me meet his challenge. Do you know of any lawyer in Anguilla who has done anything illegal, corrupt or unethical? Send me the details. I undertake not to mention your name unless you ask me to do so.

Do you know of any lawyer who has received money for someone and refused or been unable to pay it back?

Do you know of any lawyer who has represented a client in a land purchase and ended up buying the property himself or herself?

Do you know of any lawyer who as advised on administering an estate and ended up owning the assets?

Do you know of any lawyer who has done anything that he or she ought to go to jail for?

Do you know of any lawyer who should, in your opinion, be struck off the roll of lawyers or be fined or suspended?

If you were the one who was damaged, I shall advise you on how to go about getting full compensation for any loss suffered. I shall assist you in bringing the lawyer to justice. I shall stand by your side when you go to the authorities to make your complaint, if that is what you want to do. I shall publish the story on the Blog, if that is what you want. Just send me the details. Let us show the Chief Minister that we are concerned about ethics and integrity at all levels of society in Anguilla, particularly including the legal profession!

Social Security Blackout

Social Security Blackout. Last week I did a post on Social Security. It was titled, “Social Security: Guest Editorial 4”. It attracted some of the most comments of any previous posting.

Tim Hodge is the Director of Social Security. He is a scrupulously honest person. No one is alleging any wrongdoing. The post merely asked some questions about the amount of money spent by the Board during the year 2006 on non-benefit-related matters. It suggested that the Social Security Board was keeping us in the dark about how it spent our money. In particular, it asked how the Board could justify spending so little as $5.2 million on benefits out of a total expenditure of $9.2 million in 2006. It quite reasonably, I thought, asked what the other $4 million was spent on. It compared the expenditure of the $4 million with the expenditure of various essential government departments in the year 2005.

Tim did a long emailed reply, which I posted under comments. He sent me other messages expressing outrage at the whole post and the comments. He is convinced that the Board does its work with complete transparency. Yet, every single one of the other persons who spoke to or emailed me agreed that the manner in which the Board was functioning was a public outrage.

I could not understand why Tim found it so difficult to see the reason why people are upset and suspicious about the activities of the Social Security Board. I noticed that he made no attempt in any of his messages to respond to the substance of the guest editor’s post. I decided that the old maxim that a picture is worth a thousand words applies. Let us look together at some pictures online. I invite you to Google the words “Anguilla Social Security”. Have a look at the first 10 results. See if you can find any information in any of them about anything that would interest the average inquirer. See if you can find out anything about the members of the Board, the committees of the Board, anything on the functioning of the Board, anything about the investment of our funds. See if you can find out even the most basic information. You will find that there is nothing at all published about the functioning of the Board and the way it deals with our money.

One of the first results on your Google search would have been the Board's website. You went to the various pages. You ransacked every nook and cranny in the site. Tell me if you were able to find out any useful information on it. The most recent Annual Report published on it was for the year 2003. Who else but an archaeologist would be interested in anything as old as the year 2003?

As one of my correspondents remarked, “So mucha pages, so little news.”

Come on, Tim. You have to do better than that if there is to be any claim about transparency.

Court Information

Court Information. There is an interesting story on the recently concluded Law Enforcement and Attorney-Generals’ Conference held in the Cayman Islands to be read on CamanianCompass, Cayman's leading newspaper. According to the story, delegates from the Overseas Territories and other delegates met together in Grand Cayman to discuss how best to secure the region from threats of crime and terrorism. No doubt, our Attorney-General and Commissioner of Police were in attendance. Given government's penchant for secrecy at all levels, we may never know. [I don't mean the ministers for the moment.]

What caught the attention of one of my readers was a short paragraph about a speech made by Leader of Government Business, Kurt Tibbets. He pledged, among other things, to create "a legal and judicial website" for those who need to access court information. My reader asks,

What is a “legal and judicial website for those who need access to court information”? When will Anguilla have one? Who are “those who need access to court information”? Will this be the public and the media, or will it be more secret stuff that is only available to members of the bar and parties to cases? Some people can afford to hire a lawyer by the hour to do record searches for them. Not everyone can. Is this to be a “Full Employment for Lawyers” regulation? If so, what is the position of the Anguilla and OECS Bar Associations on it, not to forget the EC Supreme Court and the Privy Council? Who are the players in this game? Who supports the lawyers and who supports the people?

Nuff respek!

New Moratorium

New Moratorium. I do not know how many of you read the item in the Anguillian Newspaper http://www.anguillian.com/article/articleview/4336/1/140/ concerning the new moratorium on land sales announced by government. It brings a halt for a period of six weeks commencing on 31 January to the processing of Aliens Landholding Licences for all land in Anguilla, whether undeveloped land or buildings. This moratorium does not apply to land that has previously been alienated!

The announced purpose published in the paper is to “allow the Government to carry out a review to determine the impact of such licences on the economic and social development of the island.”

On Elkin Richardson’s call in radio programme “To the Point” recently, Minister Victor Banks gave as a second reason, “that they were concerned about the rising cost of labour and ensuring that such costs remained affordable for Anguillians”.

Then, in practically the last paragraph of the newspaper story, appears the following ominous sentence: “Notwithstanding the six-week suspension, as approved by the Governor in Council, the Government reserves the right to consider any application for an Alien Landholding Licence as the particular circumstances of the case may merit or as the Governor in Council may otherwise consider." There are no rules that apply to help the ministers decide who to approve and who not to. It is a matter entirely in the unfettered discretion of the ministers.

The clear meaning of this is that any foreigner who can persuade the ministers that his case deserves special merit will not be prohibited. The Anguillian who is in the good books of the ministers will have no difficulty in pushing his case. It is the foreigner who is not “persuasive” and the local Anguillian who can’t show the “merit of his case” who is caught.

A friend who should know now tells me that basically the ministers will not be processing licences for the next six weeks, and thereafter it will be on a case by case basis.

Has anyone thought out the implications of this new policy? Do I understand that this means that all Anguillians are now barred for six weeks from selling to foreigners who pay the big bucks? Condo and villa sales by Flag, Viceroy and Altamer can go ahead, but you and I can only sell to each other? Only foreigners whose property is already alienated can sell to the rich foreigners who are paying the best prices? Thereafter, it is only those who can “persuade” the ministers on a case by case basis who will be allowed to convert their land to cash?

Can someone tell me, what genius thought that this was an appropriate alternative to having a proper policy?

Is this a case of “openness, transparency and accountability” just being something we say?

Accountability

Equal Before the Law?

Can we in Anguilla learn anything from this report on recent developments in the police service in the Falklands Islands?

Penguin News on the Falklands reported on Friday that fifteen months after being suspended from duty, former Chief Police Officer, David Morris, has at last been sentenced.

In court on Monday, he received a six month suspended prison sentence, suspended for one year, having been found guilty on November 9, 2006 of perverting the course of justice.

Mr Morris was found to have pressured Inspector Len McGill to terminate a police inquiry into an alleged assault by his son, Jason Morris. On the evening of the verdict, Mr Morris became ill and was admitted to hospital where he remained until his sentencing.

Senior Magistrate Clare Faulds read the judgment from Acting Senior Magistrate Patrick Curran QC in open court on Monday. In passing sentence Mr Curran said that Mr Morris’s time spent in hospital will be treated as time spent remanded in custody awaiting sentence. This would equate to a prison sentence of slightly more than three months.

In mitigation Defence Lawyer Keith Watson described the case as “tragic.” He said that two to five minutes of poor judgment had, in the short to medium term, “ruined a good man’s life, not to mention the devastation suffered by his wife and very close family.”

......ends...........

Or, is it true that never in our wildest imagination could such information ever become public knowledge in Anguilla, where miscreants are allowed to quietly retire?

Good Governance

GOOD GOVERNANCE.

This is presumably a State Secret here in Anguilla, but the following White Paper on Good Governance was handed down to the OT Governors during the OTCC meeting in London in November 2006.

Closed government and lack of accountability in some of the OTs have become a matter of embarrassment in Whitehall and the House of Commons. The Governors have been told to ensure that real steps are taken toward the standards of a democratic society.

Good Governance.

1. Although it is a phrase that has gained currency in recent years, the concept of governance has been with us as long as there have been systems within societies which determine the process of decision making; and the process by which decisions are, or are not, implemented. Good governance is simply doing this well.

2. Good governance is part of the partnership between the UK and its Overseas Territories set out in the 1999 White Paper, which highlighted the importance of providing governance of a high quality. It is essential that the UK and its Territories subscribe to high standards of human rights, openness and good government. Good governance builds trust amongst citizens of a society in its institutions and assists social cohesion. It encourages domestic investment; promotes higher rates of growth; and enables a society’s development to be shared equitably amongst its citizens. And it also promotes greater confidence amongst potential external investors. Moreover, good governance is a key element in ensuring sustainable development, another important area highlighted by the White Paper. For without good governance, the potential for sustainable development is severely undermined.

3. This paper seeks to set out what is good governance. The best way to do this is to identify what are some of the most important elements. Perhaps the key element of good governance is the rule of law. Good governance requires legal frameworks that are enforced impartially. This means the full protection of human rights, and particularly those of people belonging to minorities. Impartial enforcement of laws requires an independent judiciary immune from any external influence; and a police force which treats all individuals equally, without fear or favour. It also requires a public service free from political interference in its appointments, discipline and dismissals, which implements policy in accordance with the rule of law and internationally accepted standards. This provides the certainty, and sense of security, which are both essential for economic prosperity and social stability.

4. This leads on to the second element, which is transparency. This means that decisions by both the executive and legislature should be taken (and be seen to be taken) and implemented in line with defined rules and regulations. It also means that (subject to limited exceptions) information must be freely available and directly accessible to those who will be affected by such decisions and their implementation. It also requires the provision of an appropriate level of information, in an easily understandable form, by government and the public service to the public, and media.

5. The third key area is accountability. Not only Government institutions and the legislature, but also the private sector and civil society organisations, must be accountable to the public and, where appropriate, to their institutional stakeholders. Each organisation or institution should also be accountable to those who will be affected by its decisions or actions. This means that institutions should be subject to checks and balances, including scrutiny by the legislatures, committees of legislators, and other appropriate bodies. This also involves a well-developed civil society, with strong independent media free from political interference; and representative NGOs to defend the rights of individual interest groups. Institutions should in general be accessible, and open to the public and the media, so that confidence can be built up within society that these organs are functioning properly and in the general interest.

6. Crucially, these three issues are interlinked. For accountability cannot be enforced without transparency and the rule of law.

7. A further key element is the responsiveness of institutions. Good governance requires that institutional processes should serve all stakeholders within a reasonable time frame. And they should do so according to defined and acceptable standards. Another guiding factor is equity and inclusiveness. It is important that all those in a society feel that they have a stake in it, and that they do not feel excluded from the mainstream of society, or access to Government and services. This requires all groups, but particularly the most vulnerable, to have the opportunity to maintain and/or improve their well being. But most importantly, it is about ensuring that there is equality of opportunity for all in society; and that services and benefits are made available on this basis, without either politicians or public servants giving preferential treatment because of family ties, friendship or political allegiance.

8. Another significant factor in good governance is effectiveness and efficiency. It is important that processes and institutions produce results that meet the needs of society, while making the best use of resources at their disposal. This is particularly relevant in ensuring the sustainable use of natural resources and the protection of the environment. Political decisions need to be taken with the long-term interests of society in mind, to ensure sustainability. And it involves ensuring sound financial management. Good governance may mean taking on entrenched interests, and judging how strongly to lead from the front. And finally, good governance means participation, including an organised civil society; and ways to ensure that the views of the most vulnerable are taken into consideration in decision-making.

9. Good governance is important, therefore, because it is the basic foundation for a successful, prosperous, well-ordered and sustainable society. It is about ensuring that the resources of a society are used to the best and most durable effect; and to the benefit of the greatest number of the population. These are aims to which both the UK and the territories aspire. The FCO makes available finance from its OT Programme Fund to help promote activities to this end.

10. Achieving good governance poses a series of challenges for all involved. What has been described is a counsel of perfection. No country, including the UK, completely meets all the criteria. But it is something the UK and the Territories must strive to achieve. The White Paper makes clear the importance which the UK attaches to meeting its commitments, including the implementation of its international responsibilities; protecting itself against contingent liabilities; and ensuring good governance. Therefore, the UK Government will work with Territory Governments on these issues. Both the Overseas Territories and the UK Government recognise that Governors have a key role to play in this process. The UK is sure that, for the reasons outlined, Territory governments share the UK’s concern that these objectives and standards are achieved, and will work with the UK to achieve them.

Freedom of Inf.: Guest Editorial 5

Freedom of Information.

The right to access information held by public bodies, often referred to as ‘freedom of information’, is a fundamental human right recognised in international law. It is crucial as a right in its own regard as well as central to the functioning of democracy and the enforcement of other rights. As early as 1946, the UN General Assembly adopted a Resolution on the free circulation of information in its broadest sense, stating:

“Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the UN is consecrated”.

The right to freedom of information was subsequently legally guaranteed as part of the wider right to freedom of expression, under the Universal Declaration on Human Rights (UDHR), adopted in 1948, and the International Covenant on Civil and Political Rights (ICCPR), adopted in 1966.

Article 19(2) of the ICCPR, an international treaty binding on Anguilla as an overseas territory of the United Kingdom, states:

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

Anyone who has ever tried to get information out of any Anguillian civil servant knows that almost all information held by a government department is secret. Any bad news is seen as likely to spook the investor and chase away the tourist dollar. That attitude is against the law, but we need a law to protect our rights. Our government press officer gives no press conferences, and gives out no information. Radio Anguilla broadcasts no news other than trip reports and conference highlights. The newspapers publish only competitions and advertorials.

As a comparison, see the discussion in Cayman Islands on the Cayman Islands Forum.

Particularly interesting is the commentary on the draft Cayman Islands' law.

The question then becomes, “Why is no one in Anguilla pressing for a law to give citizens the right to access to information in Anguilla?” Are we going to keep putting up with the secrecy and cover ups that characterize so much of Anguilla’s public life?

Social Security: Guest Editorial 4

Social Security Overhead Scandal.

The funds paid by workers and employers into Social Security are held in trust, primarily for the hard working wage earners of Anguilla. A large element of transparency is called for.

Has anyone noticed the mysterious annual financial reports posted on the Social Security website that have had all the pages with numbers on them removed?

How does it serve the people for Social Security not to reveal what the missing pages contain?

In the "Anguillian" of 19 January we saw some self-serving data issued by Social Security. Most of it was hype, but we see, possibly for the first time this has ever been revealed to the public, a breakdown of how their overhead compares with the benefits paid to the people.

According to the graph, the benefit expenditure for 2006 was about EC$5.2 million and the total expenditure about 9.2 million. Five from nine leaves four. Over 43% of the Scheme's expenditure goes to overhead! I am astounded to learn that it costs us $4 million a year to keep the books and administer this trust fund.

In the U.S., their system operates on an overhead of less than 1%.

Just as a comparison, let us look at the last available national budget, ie, for 2005. In that year, it took:

$1.6 million to run the AG's chambers

$5.5 million to run the entire police "service", with 88 staff

$1.4 million for Immigration - 35 staff

$.3 million to administer some 1500? work permits by the Labour Dept.

$2.4 million for Customs - 58 staff

$1 million for HM Prison - 23 staff

Easy dog bite hard!

I attach a suggested illustration for this topic: A slave deck.

Outstanding Warrants

Outstanding Warrants.

When we are convicted of an offence by a court, we are usually fined. The court orders that if we do not pay our fine by a certain date, we are to serve one month or whatever behind bars. If we do not pay our fine in the designated time, the court issues a warrant to the police to pick us up and take us to the prison. Most people pay once they learn the warrant has been issued. If the person is off-island or the warrant cannot be served for some reason, it is returned to the court with an endorsement explaining. The warrant does not remain indefinitely in the possession of the police as an unserved warrant.

In Bermuda there are nearly 10,000 outstanding warrants.

In the Bahamas, an inventory of outstanding warrants revealed some 32,243 outstanding warrants issued in connection with traffic offences.

You might ask what is so bad about an unserved warrant. If the warrant is not served, and it is not returned endorsed with a note that it cannot be served for some reason or the other, it means that some police officer has decided to give the offender a break. It becomes a police officer who decided who goes to jail and who does not. What a lot of power to put into the hands of a police officer! As if they do not have enough already! It is hard to imagine a more corrupt situation!

In all my years in Anguilla I have never heard a public reference to the number of unserved criminal warrants. No one publishes this information. One might think Anguilla doesn't have any, although of course that's impossible. Is this information a State Secret, or can someone publish it? Better still, can we get to know which convicts have been sentenced by the court who have been given a break by the police?

How does it benefit the people to withhold this information? Of course, it does not. The situation will not improve until we ensure that the control of the police is taken out of the inefficient and usually incompetent hands of the Governor and his indespensible crony, the Commissioner of Police, and placed in the hands of a local, independent, non-political Police Service Commission.

Customs Patches

Customs Patches.

A correspondent tells me that he sees these Customs Patches quite frequently offered for sale on eBay.

Are they Government property?

Is someone from Anguilla selling them?

And, if so, is it a Customs Officer?

And, if so, is that legal?

Perhaps, Kenrick can advise?

NICA 1

NICA 1.

The National Investment Company of Anguilla Ltd, or NICA for short, is a bad word in Anguilla. It was founded by the National Bank of Anguilla to offer Anguillians an opportunity to invest their saved funds in a common commercial venture with the bank’s backing. I was the first legal adviser to the company. I invested a not insignificant sum of money in it. Many Anguillians invested their life savings in its shares. The initial share offering raised the required capital of five million dollars within a few short days. Then, just as it was getting off the ground, its talented St Kitts-based investment adviser was let go due to Anguillian political pressure. No other professional adviser was hired to guide the company in managing the shareholders’ funds. This was some fifteen years ago.

Four or five years ago one of the shareholders, Bob Rogers, one of the revolutionary leaders of Anguilla, took the company to court. He asked for an accounting and for someone to be appointed to let all shareholders know what was going on. He has told me that the judge made an order. In 2002, in a burst of hope and good-will, a new Board of Directors was elected. Cecil Niles was appointed Chairman of the Board. A few years later, after nothing had happened, there was another public meeting of shareholders to whom more promises were made and the company’s new lawyers and accountants were introduced. Calvert Carty, a local businessman, was elected the new Chairman of the Board. A deathly hush has once again fallen over the company and its proceedings. Bob Rogers wrote a letter to the editor complaining. Still nothing happened.

Now, my old friend Collins Richardson of North Hill has contacted me. He tells me that he and Daphne invested their life’s savings in the company. Daphne has now passed away. He is not well himself, and is confined to his home. He wants to make his last will and testament. He does not know if he has anything to leave to his children. He would like to know if his shares are worth anything. He authorized me to tell everyone that I am checking on his behalf. I have checked with Calvert. He tells me that the company has accounts it would like to publish, but it is too expensive to publish to the several thousand shareholders.

I checked with the company. It is listed in the Yellow Pages. No one answered the telephone that is the listed number.

Does any member of the Board of Directors of NICA, or its legal adviser or accountant, want to explain to Collins and to Bob why nothing has been heard of from the company after all these years? I am offering this free forum to explain what you have been doing all these years since you were appointed. I need to get back to Collins as a matter of some urgency.

Special Assistants 12

Conclusion.

This is the final post in a series looking at the political advisers or special assistants appointed by our Chief Minister to serve in various government departments. They are political appointments to carry out some of the functions that should be carried out by a Minister’s public service officials. We are wondering why it is necessary to appoint them.

To see the earlier posts click on the headlines dealing with “Special Assistants” to the right of this post under “Archives”.

On balance, it can be concluded that their appointment is deplorable. They are for the most part doing the work of public servants. They are subject to no rules of conduct or conditions of service, as are public servants. They answer only to the Minister and to their conscience.

If more public servants are needed, then the proper thing to do is to hire more through proper channels rather than make political appointments. Such appointments cause disillusionment and discontent among public servants. This is especially so when persons, who are seen as not having performed well in their previous role in the public service, are seemingly rewarded by being appointed as special assistants.

If each of the 10 special assistants is paid $5,000.00 per month, that is $600,000.00 per year, or $3,000,000.00 over the five-year term of the government. If ministers need political assistants working alongside the public servants, then let them be paid out of party funds, and not from the public purse. Public funds should not be used to pay political appointees. That practice, if not downright corrupt is, to say the least, highly irregular.

There is something intrinsically wrong about government encouraging private developers to pay the salaries of Special Assistants who sit next to a Minister and advise. Why do the Ministers not recognise that?

It makes me mad as hell!

Seymour Hodge: Special Assistants 11

Seymour Hodge.

Seymour has now retired from the United States and come back to Anguilla after an absence of many years. He is said to be a good organizer with good people skills. He was a previous president of the Anguilla Progressive Association of New York.

He has a desk in the Chief Minister’s office, and is a Special Assistant in relation to the Viceroy Anguilla Resort and Residences project.

He is paid partly by Viceroy and partly by government!

Chagos Islands

Chagos Islands

As British Overseas Territories Citizens, we in Anguilla bear contingent liability for Britain's policies towards other Overseas Territories. What she does and says regarding our brothers and sisters may apply to us one day! Read this article published in "Black Britain" on 6 February 2007 and be astonished.

By Deborah Gabriel

Irony that colonialsm rears its ugly head in the Bicentenary Year

The Foreign Office today began its third attempt to get a court ruling to prevent the Chagossian community from returning to their homeland in the Chagos Islands by dragging up colonial laws from 1865.

Acting on behalf of Foreign Office Secretary, Margaret Beckett, John Howells QC said that the May 2006 ruling which overturned the Queen’s Orders of 2004 banning their return was legally flawed. In its appeal, the Foreign Office is arguing that the 1865 Colonial Laws Validity Act gave the Queen such powers as were exercised in the Orders issued in 2004.

In court, John Howells QC said that if the May 2006 ruling had been correct it would have constituted a “revolutionary change” in the constitutional law and this would impact all British overseas territories. The appeal is expected to last five days. The Chagossians previously won two High Court rulings in 2000 and 2006.

The population of 2000 that were forcibly removed from the Chagos Islands between 1965 and 1972 were mostly descendants of African slaves brought from Madagascar and Mozambique to work on the coconut plantation. The irony that Britain is celebrating the Bicentenary of the Parliamentary Abolition of the Slave Trade in 2007, whilst using colonial law to deny their return, was not lost on their supporters outside court.

MP Jeremy Corbyn told Black Britain that it was “a disgrace” that the Foreign Office should be appealing the decision made last May; adding that that it was ironic that in 2007, the legal argument being used in the appeal “is based on colonial and imperial laws that allowed the Queen to colonise two thirds of the world.”

Minority Rights Group International (MRG), which has been supporting the legal case, is highly critical of the decision by the Foreign Office to mount an appeal. So far the cost to the taxpayer stands at £1.5 million. Speaking on Friday Clive Baldwin, MRG’s Head of Advocacy said:

"One of Margaret Beckett's first decisions as Foreign Secretary was to appeal against the High Court judgement, and therefore spend more of British taxpayers' money in trying to prevent a few thousand islanders returning to their ancestral homes, on islands which are now abandoned.”

Outside the court, Hengride Permal, Chairperson of the Chagos Island Community Association based in Crawley, where several hundred Chagossians live, read a statement to the press outlining concerns that regardless of the outcome of case, there are still complex issues to be resolved. Part of the statement read:

“As descendants of Africans we assert our right to determine our own destiny. In this respect we are calling for a wider consultation with the Chagossian people before any decisions are made with regards to our future.”

The reason for the Chagossians’ expulsion from their homeland followed a secret deal between the Britain and the US to lease the islands for 50 years so that the US could build a military base on Diego Garcia. Since acquiring the island the US government has waged two wars against Afghanistan and Iraq. There have also been ongoing allegations that Diego Garcia is being used by US security forces, as a transit point for the controversial 'extra-ordinary renditions' programme.

The statement read by Permal said: “We demand the complete removal of the US military base from the island of Diego Garcia and most importantly the right to self governance and independence.”

Speaking to Black Britain about what the future may hold for the Chagossian community, Permal said: “As Chagossian people we have always had someone making decisions on our behalf. The Chagossian people want to be independent, make our decisions and to say what our needs are.”

MP Jeremy Corbyn told Black Britain that there are several issues to be dealt with if the Chagossians win the case, such as whether they become part of Mauritius again or remain under British Indian Ocean Territory, but agreed that: “Such decisions should be made by the Chagossians themselves.”

© Colourful Network 2007

For this and related stories, see Black Britain.

Claire Wilson: Special Assistants 10

Claire Wilson.

Claire is a long-time party activist for ANA, one of the founding parties of the ruling United Front. After the elections she was appointed a member of a Task Force in the Department of Inland Revenue. She holds down a desk in the Inland Revenue building in the Old Police Barracks. Her task there is to assist in collecting defaulting Accommodation Tax owed by rental properties. She rides shotgun when Inland Revenue officials visit hotel properties.

It is not clear what her salary is or how she interacts with the public service members of Inland Revenue. She is not technically a Special Assistant as she does not, for example, attend the weekly Wednesday Cabinet Meetings in the Chief Minister’s office. But, nor is hers a civil service appointment!

Marcel Fahie: Special Assistants 9

Fabian M Fahie, MA, BSc.

Marcel, as he is universally known, is a heavyweight in the ANA, one of the founding parties of the present government, the United Front. He was for many years a Permanent Secretary in the Ministry of Finance until his recent retirement from the public service. He served as chairman of the Social Security Board and many other government boards. On the private side he was a promoter and director of the National Bank of Anguilla from its inception in 1985. He is also involved in a number of other commercial companies.

After his retirement from the public service, he continued serving the government and party in a new role of Special Assistant. It is not clear exactly what he is assisting about, but it seems to have something to do with the Flag Luxury Properties and St Regis Resort project. He is said to have been instrumental in nurturing this project to success.

Curtis Richardson: Special Assistants 8

Curtis Richardson.

Curtis is an interesting case. He is a teacher and the son of former Hubert supporter, Pastor Ambrose. He ran as an unsuccessful candidate for Eddie Baird’s party in South Hill against Hubert Hughes. He was not a candidate for the ruling party, the United Front. After the elections, he joined the government and accepted the post of Press Officer attached to the Chief Minister’s office.

It is not certain what role he actually fills. It is not a civil service appointment. The only photograph of him that appears to have been published on the web is the one on the left. He does not seem to have set off any fireworks of light or splendour in performing his assigned role of press officer for the government.

It is likely that he expects that he is being kept warm and being groomed to run as a candidate for the United Front in the next elections in Blowing Point against opposition member Hubert Hughes. If so, that may not be the best qualification to be a press officer or PRO guru.

I am still investigating the circumstances in which he came to leave the High School.

Kenswick Richardson: Special Assistants 7

Kenswick Richardson.

Kenswick was an unsuccessful candidate for the ruling party in the last elections. He ran in West End against Albert Hughes. After the election he was appointed Special Assistant in the Ministry of Infrastructure, Communications and Utilities. It is not certain what functions he performs, nor if he occupies any office space in the Ministry. After the last elections, the Chief Minister promised him that he would be involved in the government in some way.

His achievements, if any, have not received any publicity.

Ashton Bradley: Special Assistants 6

Ashton Bradley.

Ashton is a Special Assistant in the Ministry of Finance. He left Anguilla for Canada in the 1960s, and came back to Anguilla when he retired from work.

The only thing he is said to have done on his return was to hold the umbrella over Bunton's head on the campaign trail. He was made a special assistant as a consequence.

He left Anguilla again and returned to Canada in about August last for health reasons, and is not expected back in Anguilla in the near future. It is not clear whether he is still drawing his salary.

He does not seem to have made much of an impact during the short time of his service in Anguilla, as there is very little published on the web about him.

Othlyn Vanterpool: Special Assistants 5

Othlyn Vanterpool.

Othlyn was previously a fisheries officer in the Ministry of Agriculture. Towards the end of his public service he served as Acting Director of Fisheries. He may have been aggrieved when he did not eventually get the permanent post. It is rumoured he was made a Special Assistant when he complained. He is a well known youth leader, being Commissioner of Scouts, and so has been given a role as Special Assistant in the area of youth, culture and sports. He keeps a low profile and seldom appears on public platforms and forums. In private life he has for many years run a very successful “chicken ranch” and pig farm in the Island Harbour area. His appointment is said to have been very controversial in the public service.