A local businessman has filed a lawsuit challenging the Government of Guyana’s (GoG) management of the Natural Resources Fund (the Fund) established under the Natural Resources Fund Act 2021 (the NRFA 2021).
The first hearing is scheduled for Monday, 17th March 2025.
This is the first lawsuit targeting the GoG’s management of the Fund. The NRFA 2021 repealed and replaced the Natural Resources Fund Act 2019.
Terrence Campbell, appointed to the Fund’s Investment Committee in 2023, filed the lawsuit.
Today’s article attempts to summarise the lawsuit as set out in Campbell’s Fixed Date Application (the FDA) and the Affidavit in Support of the FDA. This article does not include the GoG’s defence to the lawsuit, as an Affidavit in Defence has not yet been filed.
A subsequent article will detail the GoG’s defence. In the interim, Attorney General and Minister of Legal Affairs, Anil Mohabir Nandlall SC MP says the lawsuit has “nuisance value”, and invites the High Court to breach the doctrine of separation of powers by usurping the functions of the Executive and Legislature. These statements were made during his weekly programme (see from 46:56).
Importantly, this article does not analyse the veracity of Campbell’s claims. This is intentional as this case is sub judice.
In the lawsuit, Campbell argues that: i) the GoG has failed to account for the intended purpose of withdrawals made between 2022 and 2024; ii) the GoG has and continued to fail to demonstrate whether and how withdrawals from the Fund satisfy so-called mandatory pre-conditions for withdrawals; iii) the GoG has failed to establish proper oversight mechanisms to track spending of withdrawals from the Fund; iv) the GoG has failed to meet reporting and publication requirements under the NRFA; v) and the GoG’s general management of the Fund prevents Parliament from effectively conducting proper oversight of expenditure from the Fund.
Campbell also alleges that the GoG either has or intends to use money from the Fund to finance regular government operations.
Campbell argues that these acts and/or omissions violate sections 16 and 33 of the NRFA, Article 217 of the Constitution of the Cooperative Republic of Guyana, Cap 1:01, Laws of Guyana (the Constitution), and the Santiago Principles (incorporated into the NRFA by section 4 of the NRFA).
Consequently, Campbell is asking the High Court for several Orders, including (but not limited to the following):
- An Order:
- prohibiting the GoG from attempting to obtain Parliamentary approval for withdrawals from the Fund unless the request is accompanied by information detailing the intended use of the funds;
- requiring justification of the intended withdrawals;
- mandating monthly reporting to the National Assembly on the status and usage of the funds withdrawn.
- A Declaration that the withdrawal of money from the Fund to finance budget deficits violates section 16 (2) of the NRFA 2021; and
- An injunction or other Order restraining the GoG from authorising, permitting, or utilising any money already withdrawn from the NRF in a manner that would contravene section 16 (2) of the NRFA.
Notably, the Orders sought by Campbell request judicial intervention to stop the GoG from spending money from the NRF that has already been appropriated by Parliament if the court finds that the funds are not intended to be used in accordance with Campbell’s interpretation of section 16 (2).
Section 16 mandatory pre-conditions
Section 16 (2) of the NRFA requires “all withdrawals from the Fund shall be deposited into the Consolidated Fund and shall be used only to finance – (a) national development priorities including any initiative aimed at realising an inclusive green economy; and (b) essential projects that are directly related to ameliorating the effect of a major natural disaster.”
Campbell says that section 16 (2) of the NRFA creates mandatory pre-conditions that must be satisfied before any withdrawals are made from the NRF. He argues that when he called for detailed breakdowns of money expended from the Fund, Vice President (VP) Dr. Bharrat Jagdeo said such a breakdown is only necessary where emergency withdrawals are made from the Fund.
Campbell believes that VP’s position contradicts section 16 (2) of the NRFA and Article 217 of the Constitution and is therefore unlawful.
Campbell says that he has searched the Estimates of Public Sector-Central Government Development Programme Capital Project Profiles for 2024 and 2025, which includes 406 projects, and was not able to find any information indicating that the NRF financed any of these projects (see para 34 of the Affidavit).
Terrence also noted that US$400 million was withdrawn from the Fund in 2022, US$1,002.13 million in 2023, US$850 million from January – September 2024, and US$153.456 from October – December 2024. He says there is no proper accounting for these expenditures since there is no specific breakdown of the things for which they were expended. Therefore, he says there is no evidence that the funds were spent in the way mandated by section 16 of the NRFA 2021.
Additionally, Campbell also claims that an examination of the 2024 and 2025 budget estimates indicates that the GoG is using or intends to use money from the NRF to finance regular government operations (to fund a deficit), contrary to the so-called section 16 (2) mandatory pre-conditions.
Section 33 Reporting Requirements
Section 33 (1) of the NRFA requires the Minister of Natural Resources to publish monthly, quarterly, and annual reports on the Fund’s financial position on the Ministry of Natural Resources’ website.
Section 33 (2) of the NRFA says that receipts of all petroleum revenue paid into the Fund must be published in the Official Gazette within three months of being received and laid in the National Assembly as soon as practicable.
The GoG has published reports, which Campbell has referenced in the lawsuit. Still, Campbell argues that these reports do not satisfy the section 33 obligations because they do not detail “fund usage”.
Article 217 violated?
Article 217 (3) and (4) states that money shall not be withdrawn from any public fund other than the Consolidated Fund unless under an Act of Parliament, and Parliament has the power to decide how withdrawals are to be made from the Consolidated Fund and any other public fund.
Campbell argues that when section 16 (2) of the NRFA is read together with Article 217 (3) and (4) of the Constitution, GoG is required to provide Parliament with a breakdown to show that withdrawals from the Fund will be used in accordance with section 16 (2) of the NRFA.
He argues that the GoG’s alleged refusal or failure to provide breakdowns of the intended purpose of funds withdrawn, and reports of how money from the Fund has been spent prevents proper oversight by Parliament, and therefore violated Article 217 of the Constitution.
Response by the Government of Guyana
The GoG has not yet filed a response to this lawsuit; however, recent statements by Attorney General Mohabir Anil Nandlall SC MP provide clues as to at least some of the points that are likely to be taken.
The Attorney General says, among other things, that the lawsuit has “nuisance value”, and that Campbell is “inviting the court to make orders that would put the court in violent breach of the separation of powers doctrine. They are asking the court to interfere with, and worse yet usurp the functions of both the Executive and the Legislature. They are asking the court to direct the…Executive on matters such as national priority and national development priority. Those are matters within the domain of the Executive.”
