-but orders that remainder of subvention for 2022 be paid
Acting Chancellor Roxane George yesterday ruled that the International Decade for People of African Descent Assembly-Guyana (IDPADA-G) had no contractual or legal right to continued government funding but found that the organisation should have been given notice before its subvention was discontinued in late 2022.
In a 30-page decision handed down in the High Court, Justice George dismissed claims by (IDPADA-G) that it had a contractual entitlement and a legitimate expectation to receive annual state funding throughout the United Nations International Decade for People of African Descent (UNIDPAD).
However, the Chancellor ruled that principles of procedural fairness required the government to notify the organisation before ending the payments and ordered that the outstanding subvention for October, November and December 2022 be paid.
The ruling brings to an end a closely watched legal battle that arose after the government stopped direct payments to IDPADA-G amid what it said were concerns over the management and distribution of the funds.
The proceedings were brought by IDPADA-G Inc., represented by attorneys-at-law Nigel Hughes and Dr Vivian Williams against Attorney General Anil Nandlall SC, Minister of Culture, Youth and Sport Charles Ramson Jr, the Ministry of Finance and other state officials.
The organisation had argued that the APNU+AFC administration’s commitment to support activities associated with the UN decade gave rise to a binding agreement and a legitimate expectation that annual subventions would continue until the end of the international observance.
It sought declarations that the government unlawfully terminated the subvention and violated its constitutional rights by doing so.
In her ruling, Justice George found that the central premise of the case was flawed because the applicant company was not incorporated until September 2019, three years after the statements on which it relied.
The Chancellor noted that former President David Granger announced in August 2016 that his government would support activities connected to the UN decade and encouraged African-Guyanese organisations to coordinate efforts around the observance.
According to the evidence presented by IDPADA-G, a core group of African-Guyanese organisations subsequently engaged ministers and government officials regarding support for the initiative and eventually formed the organisation.
Justice George found, however, that Granger’s remarks did not constitute a contractual offer.
“The President’s speech at the public forum can only reasonably be considered a general policy statement on the government’s intention to support African organisations in observance of the decade,” she stated.
She added that the speech amounted to a declaration of government policy rather than a specific undertaking directed at a particular organisation.
Too vague
The court found that no clear and unambiguous promise had been made to IDPADA-G or its predecessor and that there was no evidence establishing the essential elements of a contract.
Justice George said there was no written agreement, no clearly defined terms and no evidence of consideration flowing from the organisation to the government.
“It is all too vague for a court to conclude that there was a binding contract as claimed,” she ruled.
The Chancellor also pointed to inconsistencies in the evidence regarding the amount allegedly promised to the organisation. While some witnesses referred to an initial allocation of $68 million, former Finance Minister Winston Jordan referred to a figure of $60 million.
According to the ruling, these inconsistencies further undermined the argument that there had been a clear agreement between the parties.
The court also rejected IDPADA-G’s argument that it had acquired a substantive legitimate expectation that the annual subvention would continue until the conclusion of the UN decade.
The acting Chancellor found that Granger’s statements were directed toward supporting the cause of the International Decade for People of African Descent rather than any specific organisation.
“The government budgeted the subvention in favour of the cause, and not the applicant specifically,” she ruled.
The Chancellor also cited statements made in Parliament by current Finance Minister Dr Ashni Singh and former Culture Minister Dr Frank Anthony, both of whom referred to budgetary allocations being made for activities associated with the decade rather than for IDPADA-G itself.
George noted that the budget allocations approved by Parliament did not specifically identify IDPADA-G as the beneficiary.
As a result, she held that the government remained free to alter how those allocations were administered and could designate different entities to execute programmes associated with the UN decade.
“The government was and remains free to change its policy regarding the utilisation of the budgetary allocation for the UNIDPAD,” she wrote.
The Chancellor further rejected arguments that the discontinuation of the subvention amounted to a deprivation of property in violation of Article 145 of the Constitution.
Unfairly
While finding against IDPADA-G on its principal claims, George said the government had nevertheless acted unfairly when it terminated the payments without notice.
The ruling noted that Ramson had acknowledged receiving complaints from other individuals and groups who believed they should have benefited from the funds allocated for activities related to the UN decade.
The Minister also indicated that concerns had been raised about the manner in which the subvention was being used and that an investigation had been initiated.
However, Justice George found no evidence that IDPADA-G was informed of the complaints, invited to respond to them or given any indication that the funding would be discontinued.
The court held that although no substantive legitimate expectation existed, the organisation was entitled to procedural fairness.
Justice George said that because IDPADA-G had received monthly payments since 2018 and had been operating on the basis of those allocations, fairness required that it be informed in advance of any decision to end the arrangement.
“IDPADA-G and by extension the applicant should have been notified, at least three months prior to the government making the decision to cease the subventions,” she ruled.
The Chancellor found that the organisation would reasonably have planned its activities and obligations on the assumption that the approved 2022 allocation would continue to be disbursed.
Consequently, she ordered that the final three monthly payments for October, November and December 2022 be paid.
Issue
An important issue throughout the proceedings was the distinction between IDPADA-G, the non-governmental organisation established in 2017, and the incorporated entity, International Decade for People of African Descent Assembly-Guyana Country Coordinating Mechanism Inc., which was formed in September 2019.
Justice George observed that much of the evidence blurred the distinction between the two entities and that even the respondents sometimes treated them as one and the same.
Because the NGO itself could not sue or be sued, the Chancellor ordered that Vincent Alexander and Olive Sampson be joined to the proceedings as representatives of IDPADA-G.
In the final orders, the court refused all substantive relief sought by the applicant, declared only that IDPADA-G should have been notified before the subvention was discontinued and directed payment of the final three instalments for 2022.
No order was made as to costs.
The organisation was established during the APNU+AFC administration to coordinate local observances and programmes linked to the UN International Decade for People of African Descent. It received annual state funding beginning in 2018.
Following the PPP/C’s return to office in August 2020, questions were raised about the administration of the funds. In 2022, the government discontinued direct payments to IDPADA-G and indicated that resources allocated for programmes associated with the UN decade would be distributed through alternative mechanisms.
The move prompted the legal challenge, with IDPADA-G contending that the termination was unlawful and politically motivated, while the government maintained that no organisation had an automatic right to receive the allocation.
Discussion