By Abiola Inniss LLB, LLM, ACIArb
It is a sore issue in the administration of justice in Guyana that oftentimes laws that have been passed by the National Assembly for the good of the nation are not practically or properly implemented, or simply sit on the shelves in the Parliament Buildings and elsewhere marking time.
This is the very situation in which Guyana’s consumer affairs finds itself with the Consumer Protection Act of 2004. This piece of legislation is undoubtedly and commendably one of the more progressive that has been had in recent times since it proposes practical mechanisms for dealing with the issues of the Guyanese consuming public and takes into consideration the practical needs of the business sector in having matters of dispute resolved in a timely cost effective manner; this is an absolute prerequisite for the development and progression of international business in Guyana and certainly one of the important attractions for securing business in foreign countries.
The proponents of local consumer affairs may well laud this legal instrument, which sets out its function as follows: “An Act to provide for the promotion and protection of consumer interests, in relation to the supply of goods and provision of services in order to ensure the protection of life ,health and safety of consumers and others, the establishment of a Consumer Affairs Commission and for connected purposes.”
It is interesting that the details of the instrument express that certain mechanisms must be implemented in order to give effect to the aspirations of the legislation; the Act further stipulates:
“There is hereby established for the purpose of this Act a Consumer body to be called the Consumer Affairs Commission Affairs (hereinafter in this Act referred to as the Commission)
Subject to subjection (3), the Commission shall –
(a) carry out, at the request of a consumer who has been adversely affected, such investigations in relation to the sale of goods or the provision of services as will enable it to determine whether
the goods were sold or the services were provided in contravention of this Act and thereafter to make such report and recommendations in connection therewith as it thinks fit to the Minister;
(b) carry out, on its own initiative, such other investigations in relation to the availability of
goods of any class or description as it thinks fit and make such report and recommendations as
it thinks fit to the Minister;
(c) promote the development of organisations formed for the protection of the consumer to
ensure that they fulfill the criteria listed in section 4;
(d) collect, compile and analyse information in relation to any trade or business;
(e) provide information to consumers on their rights as consumers and to enable them to make
(f) implement education programmes for the benefit of consumers and vendors or providers;”
Even more importantly the Act institutes the mechanism of alternative dispute resolution in the form of mediation and an arbitral tribunal for consumer affairs as follows:
“Any written contract formed between a consumer and a vendor may include a clause providing for the parties to attempt to settle their disagreement through mediation by the Commission before taking the matter to court.”
And provides for the Arbitral tribunal thus”
“For the purposes of this Act, there is hereby established a Tribunal to be known as the Consumers Fair Trading Tribunal.
“(1) Subject to this Part the Tribunal has all the powers and authority vested in the High Court in the exercise of its civil Jurisdiction.”
One is left to wonder then at the state of consumer affairs in Guyana in the face of relevant modern legislation, which makes use of alternative dispute resolution and requires the establishment of a Tribunal with the powers of the High Court complete with all the practical administrative structures.
It is the common experience of consumers in Guyana that goods and services can be of varying degrees of quality and that there is little redress available to an aggrieved consumer except in the form of letter writing in complaint to one of the local newspapers, and perhaps some complaint to a consumers group which may attempt to agitate in the public eye if it is worth the while.
The consumers’ hotline hosted by the Ministry of Tourism Trade and Commerce serves as information and perhaps a sympathy centre but does not help in the practical resolution of disputes which it can be safely assumed is the central need of consumers who approach the Ministry.
One may also find oneself bereft of explanation on why the Act has been ignored by the Guyana government which enacted it in the first place.
Whatever the explanation or excuse, the fact remains that the consumer is deprived of a right to which she or he is entitled at law simply because the Consumers Act of 2004 has not been implemented. It is even more damaging to the efforts for the promotion of business in Guyana, both international and local that the question of how business disputes may be resolved in a timely and cost effective manner must be answered by referral to the Commercial Court of the Supreme Court of Guyana.
While the Commercial Court cannot be accused of sloth or inefficiency, it is certainly not the most efficient way to resolve all disputes of a business nature. The establishment of the Tribunal and Commission is justified not simply because it is the law but because it makes perfect sense in terms of commerce and industry and affords all consumers with the right, the means of redress.
In the current situation all Guyanese consumers have the right of redress for wrongs and the right to have their matter heard under the law, there is however no means through which this can be done as is required by the 2004 Consumers Act, therein lies the travesty.
With the presentation of the recent annual budget by the Guyana Government, which has been marketed as the largest in the history of Guyana and in which there are several plans for the development of business, both international and local, there needs to be serious attention to the state of consumer affairs.
The Consumer Affairs Commission and Tribunal need to be established as required and to sit, not on paper, but in the actual service of the nation.