On June 11, 2024, the U.S Department of Treasury announced that the Office of Foreign Assets Control (OFAC) had sanctioned members of one of Guyana’s wealthiest families, namely, the principals of the Mohamed’s Enterprise. Almost nine (9) months later, one of the key principals of the sanctioned entity spoke out publicly for the first time about the impacts and challenges encountered, as a result of those sanctions. In this regard, the following inaccurate and misrepresented notions were proffered:
a) That the Constitution protects him as a citizen of Guyana,
b) That the sanctioned entity is unfairly treated by the Government of Guyana,
c) That the sanctions does not prevent the sanctioned entity from engaging with local businesses or individuals, and
d) That the Government of Guyana has misrepresented how the sanctions work.
The aforementioned postulations put forward by the sanctioned entity are woefully inaccurate, and deviously misleading. With respect to the Constitution of Guyana offering protection to citizens of Guyana, such constitutional protection is conferred upon citizens under the assumption that the citizens conduct themselves lawfully and operate within the framework of respect, compliance and adherence to the rule of law. For example, as it relates to this specific situation in which the sanctioned entity has found themselves in, Article 141 of the Constitution of Guyana offers “Protection from deprivation of property”, which states that:
1. No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except by or under the authority of a written law and where provision applying to that taking of possession or acquisition is made by a written law requiring prompt payment of adequate compensation”.
2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of the preceding paragraph-
a. To the extent that the law in question makes provision for the taking of possession or acquisition of any property- i. In satisfaction of any tax, duty, rate, or other impost… Additionally, Section 78 of the Anti-Money Laundering and Countering the Financing of Terrorism Act No.13 (2009) (AML/CFT Act) establishes a provision for “evidence of corresponding law”, which states that: “A document purporting to be issued by or on behalf of the Government of a country or territory and purporting to state the terms of a corresponding law in force in that country or territory shall be admitted in evidence, in proceedings under this Act, on its production by the prosecution without further proof, and such document shall be conclusive evidence that”-
a) It is issued by or on behalf of the government of that country or territory;
b) The terms of such law are as stated in the document;
c) Any facts stated in the document to constitute an offence under such law do constitute such offence.
The foregoing citations from the Con-stitution of Guyana and the AML/CFT Act, respectively, plainly established that the Constitution of Guyana offers conditional protection to citizens provided that they are (i) law abiding, and (ii) insofar as the sanctioned entity is concerned, though by another country, the evidence thereof shall be treated as conclusive evidence in a local court under our domestic AML/CFT laws.
Against this background, it is a catastrophic misconception to believe that the OFAC sanctions would not negatively impact Non-U. S entities that engage in transactions or any sort of business dealings with a sanctioned entity. In fact, the subject matter OFAC statement in of itself asserted in unequivocal terms that: “financial institutions and other persons that engage in certain transactions or activities with the sanctioned entities and individuals may expose themselves to sanctions or be subject to an enforcement action. The prohibitions include the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any designated person, or the receipt of any contribution or provision of funds, goods, or services from any such person”.
To this end, it must be noted that in law, “persons” refer to both individuals and entities. A government is also an entity. And further, “other persons” in the above referenced paragraph refers to other persons or entities other than US entities. Therefore, if the Government of Guyana or the Government of any other country, individuals and other entities engage in doing business or any other activities with a sanctioned entity, those entities will be exposing themselves to the compliance risks therefrom, to wit, sanctions or enforcement action. This explains why the local commercial banks had no other choice but to sever ties with the sanctioned entity, failure of which would have negatively impacted their correspondent banking relationships with US banks and would have resulted in a complete cut off from international payment systems.