Dear Editor,
The Guyana Constitution provides that elections shall be independently supervised by the Guyana Elections Commission (Article 62) The same article refers us to Article 162 for the duties and powers provided. An important area, its financial arrangements, received little attention, less than those of the new commissions listed in the Third Schedule of the constitution regulated by Article 223 A. It is the Commission that has the function of regulating the choice of a government. A public examination of its financial independence seems timely. A written constitution should not rely on conventions in matters of financial control of elections.
I am writing this letter to raise issues, as I did before the 2001 elections, that is when it is early, rather than when it is too late.
From time to time it has leaked into the public area that the elections commission has trouble getting money for its functions from the executive. Then members of the country’s executive have from time to time been helpful enough to make pronouncements which expose their control of finance intended for elections
Dr Rupert Roopnaraine, for the WPA, complained recently about “the fact that the Guyana Elections Commission continues to be tied to the financial purse strings of the Office of the President,” and added that “it clearly erodes the independence of the Commission that was intended.” Dr Roopnaraine is not absent. He has also been invited to observe elections in other countries.
The same report had the Head of the Presidential Secretariat saying that government wanted Gecom “to explain why monies were spent on goods and services without following tender procedures.”
I venture one bold argument from a reading of Article 162 in the spirit of Article 62. It will surprise the public, especially lawyers. I would not make this argument if the Elections Commission’s financing had been protected or guaranteed. I am suggesting – aware that all the electoral parties are still represented on the Commission – that Article 162 allows the Commission to give direction to persons “exercising powers or performing duties” relating to elections, and “take such action as appears to if necessary or expedient to ensure fairness and compliance…”
The other argument comes from a High Court decision which was not appealed or overturned. I am supporting the opinion that the elections commission is not independent unless it is financially independent, (not “tied to the purse strings of the Office of the President”) and if it has to appeal to the executive for money to carry out its constitutional mandate.
I agree that the elections commission cannot direct the Office of the President where to locate the bridge across the Berbice River or how to get the Skeldon flagship project efficient. The executive may ignore climate change and place the bridge in the mouth of the river. When it comes to general elections, the executive cannot control the Commission’s finance and claim to be within the rule of law.
A statement on Gecom’s FQA page online reads: “The expenditures of the Guyana Elections Commission are controlled by the Ministry of Finance in so far as they relate to financial probity..” Is Dr Luncheon then an agent of the Ministry of Finance?
And who is responsible for the “financial probity” of the Ministry of Finance?
There is an allegation that the Chairman of the Guyana Elections Commission varied the answer given on the Commission’s FAQ by stating on TV that he normally reported in his official capacity to Dr Luncheon. I would describe Dr Luncheon as an official under the control of the executive. He is as partisan an official as you can find.
Dr Roopnaraine of the WPA seems closer to the constitutional requirement than the other quoted sources. There is no room for a thing called “the government” or “the Office of the President” in the administration of the affairs of the elections commission, even under the guise of financial accountability. The constitution explicitly gives this function and power to the Auditor General, who is “subject to the direction or no person or authority.” It is hoped that all other parties, including the ruling party, will let the people know whether they uphold the constitution as their MPs pledge on oath to do.
In fact the official Oath of Office binds all office holders, including members of the Guyana Elections Commission, to uphold the constitution.
We all know that the PNC stole governments after the coalition period. We assume that the PPP has a flawless record of fair elections practice, but it really does not, although it has not so far stolen governments. I pause for challenges.
Officials concerned are behaving as though the High Court had not ordered in a judgment the striking down of a former president’s notices charging ministers with responsibility for elections contrary to the constitution. Those were notices in the Official Gazette assigning responsibilities to ministers. Now in the 18th year of the new government we are heading, by other means towards the good old days!
Yours faithfully,
Eusi Kwayana
