Former Attorney General Anil Nandlall says the Guyana Elections Commission (Gecom) has the constitutional authority to instruct that a date be set for the election of the Mayor of Mabaruma and the chairs of the five Neighbourhood Democratic Councils (NDCs) where there were ties at the March 18 local government polls.
Nandlall made the assertion in response to a press release issued by Gecom, which stated that it was yet to receive notification for the conduct of the elections in any of local authority areas where there were ties.
There was a tie in the number of seats awarded to APNU+AFC and the PPP/C in the Mabaruma Township as well as at the Woodlands-Bel Air, Malgre Tout-Meer Zorgen, Gibraltar-Fyrish, Industry-Plaisance and Woodlands-Farm NDCs.
In light of the ties, Communities Minister Ronald Bulkan controversially appointed the Mayor of Mabaruma as well as chairmen and vice chairmen of the NDCs, prompting the PPP/C to move to the court to secure orders quashing the appointments.
Gecom, in a press release issued by its Deputy Chief Election Officer Vishnu Persaud on Monday, said that with a tie in vote for the mayoral office at Mabaruma, Section 13(6) of the Municipal and District Councils Act provides that on account of equality of votes, “the Town Clerk shall appoint a date not later than December 28 in the same year for the election of the Mayor from the tied Candidates by the voters whose names appear on the register of voters, for the time being in force, for the city.”
It stated that to date Gecom has not received any notification, as required by law, from the Clerk of the Municipality of Mabaruma, or from any other source, written or otherwise, that a date has been fixed for the conduct of an election in compliance with the law.
With regards to the NDC chairpersons, the release said Section 28(6) of the Local Government Act provides that, if there is no election of Chairman on account of an equality of votes cast by the councillors present, “the overseer shall immediately fix a day within the last 10 days of the year for the election by the registered voters, for the election of a Chairman from the councillors receiving the equal votes and the election must be held in the same manner provided for the election of village councillors.
It was stated that to date Gecom has not received any notification, as required by law, that a date for the elections has been set.
According to the release, in the case of the results for the election in Constituency No. 7 (Rose Hall Central), three Candidates contested and Marcia Tonike Fraser, of APNU+AFC, secured 130 votes; Chattergoon Ramnauth, of the PPP/C secured 166 votes; and Sandra Chisholm also secured 166 votes.
Given the tie, the release said the Municipal and District Councils Act, as amended by Section 53A. (1) of the Local Authorities (Elections) (Amendment) Act, provides that “Where a vacancy for a councillor in respect of the first-past-the-post number of councillors in a local authority area occurs as a result of death, resignation or any other cause, the Clerk of the Council shall, after compliance with the provisions of section 43 (1) of the Municipal and District Councils Act, inform the Elections Commission, which shall instruct the Chief Election Officer to hold a By-Election and the Chief Election Officer shall carry out the instructions thereof.”
It pointed out that notably there is no legal provision for the conduct of a by-election where there is an equality of votes for two or more candidates for any constituency election. “Accordingly, the Commission is of the position that, since no one could be issued a Certificate of Election due to the equality of votes, no councillor could be appointed in respect of constituency No. 7 for the Municipality of Rose Hall. Therefore, the issue of the existence of a vacancy does not arise,” the release said.
It added that in recognition of this legal deficiency, the Commission took the unanimous decision “to bring it to the attention of the powers that be through the Ministry of Legal Affairs towards having appropriate enabling legislation enacted in order to conduct the required by-election.”
The release said that Gecom and its Secretariat stand prepared to hold any of the elections, “if and when called upon to so do within the realms of the relevant legal authority.”
Abdication of responsibility
Meanwhile, Nandlall expressed satisfaction with Gecom’s interpretation of the law, while adding that PPP has been at pains to point this out.
“I am pleased to note that Gecom’s interpretation of Section 13 (6) of the Municipal and District Councils Act, Cap. 28:01 and Section 28 (6) of the Local Government Act. Cap 28:02, accords with ours (PPP/C). I am also pleased to observe that Gecom’s understanding of how the law is to be applied is also consistent with ours: that is, that once there is an inability to elect a Mayor by virtue of an equality of seats in a Municipality, then the Town Clerk must next appoint a date for the election of the Mayor from the tied candidates by registered voters in that particular Municipality. Similarly, in an NDC, once there is an inability to elect a Chairperson by virtue of an equality of seats in an NDC, then the Overseer must next appoint a date for the election of the Chairperson from the tied candidates by registered voters in that particular local authority area,” he said in a statement.
He said he is also contented that Gecom recognizes that the law does not permit or authorise, in any manner whatsoever, the Minister with responsibility for Local Government to play any role in this process and, more specifically, to select one of the tied candidates as Mayor of the Municipality, or Chairperson of the NDC. Rather, he said, it is an election by the registered voters in the locality that determines who is the Mayor or Chairperson, respectively.
“The truth is that Gecom’s now publicly stated position is consistent with everyone who have publicly spoken on this matter, excepting the Attorney General and Minister of Communities. They remain the only two persons who have a different interpretation of the very clear language of the law. It is now clear that even the three Commissioners, representing the Government on Gecom, disagree with them,” he added.
“I take grave umbrage to Gecom’s passive and sedentary posture on this matter, having regard to its exclusive constitutional functions and mandate in respect of the conduct of elections as enshrined in Article 162 of the Constitution,” he added.
He stressed that Gecom has a constitutional power and a duty to issue instructions to persons who have to exercise powers or perform duties under any Act of Parliament in connection with elections in order to ensure compliance with the law and the Constitution. “I submit that the Town Clerk, under Section 13 (6) of the Municipal and District Councils Act, Cap. 28:01, and the Overseer, under Section 28 (6) of the Local Government Act. Cap 28:02, are persons who fall within this category and to whom Gecom can give instructions pursuant to Article 162 (1) (b) of the Constitution,” he said.
He added that “there is no need for Gecom to idly await a date coming from these officers for the holding of these elections. If these officers fail or refuse to fix such a date, then Gecom has the constitutional power and mandate to instruct them to do so. Gecom must do so now. Anything less would amount to an abdication of its constitutional mandate and responsibility”, Nandlall asserted.
