I am endeavouring to have a free, fair and transparent election … I believe in inclusivity and I will speak with everybody. I do not believe in people walking out when there is a disagreement. I believe in sitting down and hammering out whatever is the problem. Not the media will try our problems, we will have to determine our problems.
Justice (Ret’d) Claudette Singh, Chair of GECOM
Kenya’s Minister of Finance was charged based on allegations of corruption involving over a US$450 million contract to build two dams. He is accused of flouting the relevant regulations in the award of the contract to an Italian company. Zimbabwe’s Tourism Minister was also detained for questioning over the abuse of the US$1 billion state pension fund when she was the Labour Minister. Kenya’s local chapter of Transparency International believes that arrests are not enough and that convictions and the return of stolen assets are needed. As indicated in last week’s article, throughout Africa, most people believe that corruption is getting worse, and governments are doing little or nothing to address the problem.
Readers may be wondering why we have been focusing on events taking place in the aftermath of the vote of no confidence in the Government and whether this does not represent a departure from the aims and objectives of this column. The reason is two-fold. First, we strongly believe in the strict adherence to all the tenets of democratic governance, including respect for the rule of law and rulings of the courts, transparency in conducting the affairs of the State, and all forms of public accountability. As we have argued elsewhere, there is a strong positive correlation between democracy and accountability which are the twin sides of the same coin. In the most rigorous analysis of the relationship between democracy and accountability, more often than not, it will be found that democracy leads to accountability which in turn leads to development. On the other hand, a lack of democracy leads to a lack of accountability which in turn stagnates development.
The second reason is that by tracking developments on the subject, we provide a weekly account of what happened as the Authorities seek to implement constitutional requirements consequent upon the passing of the no confidence vote. In doing so, we hope that readers, both present and future, with an interest on the subject, will find everything he/she needs to know in one place through access to our columns.
In our 15 July 2019 article, we outlined the consequential orders that the Caribbean Court of Justice (CCJ) issued to give effect to its rulings on the vote of no confidence in the Government and on the appointment of the Chair of the Guyana Elections Commission (GECOM). The CCJ made it clear that Article 106 of the Constitution provides the necessary guidance as to the way forward. This requires the Cabinet, including the President, to resign and elections held within three months or such longer period as the National Assembly may determine by the votes of at least two-thirds of all the elected members of the Assembly. However, the Government shall remain in office until elections are held. In this regard, the CCJ stated that the Government’s role is one of ‘caretaker’ in the management of the affairs of the State and that it must exercise restraint in exercise of its legal authority. This implies, among others, that no new laws should be passed; no new agreements entered into that have the effect of binding the State; and caution exercised in implementing the national budget.
Statement by the PSC
The Private Sector Commission (PSC) took issue with the President for stating that the Cabinet would continue to function as normal, despite the ruling of the CCJ and the requirements of Article 106 of the Constitution. The PSC expressed concern that entities awarded contracts and other matters approved by the Cabinet may be put at risk. Noting that it has been seven months since no confidence vote was passed, the PSC stated that ‘during this period, our country has been forced to stand in waiting, our economy, investment and the business of the country made to suffer, while the general environment of uncertainty has prevailed across the country’. The Minister of Finance, however,
maintains that economy has not been adversely affected and that mid-year and end-of-year growth rates are expected to be four percent and 4.4 percent respectively.
Joint statement from the diplomatic community
The diplomatic missions of the United States, Britain and the European Union issued a joint statement calling on all the players to abide by the definitive orders of the CCJ relating to the holding of general elections: ‘[T]he Caribbean Court of Justice – Guyana Supreme Court – has spoken. It is important for the rule of law that all invoked actors abide by its ruling and the relevant provisions of the Constitution. We urge everyone to do so expeditiously’.
Last Wednesday, the diplomatic missions of the United States, Canada, the UK and the European Union met with the President. According to a Government statement, the diplomats commended the President on the selection of the Chair of the Guyana Elections Commission (GECOM). At the meeting, the President explained that ‘at all times he has complied with the rulings of the courts and most particularly, the ruling of the CCJ’. The President also briefed representatives of civil society on the same day.
Opposition Leader’s letter to the President
On 20 July 2019, the Opposition Leader wrote to the President requesting the immediate resignation of the Cabinet, the dissolution of Parliament and the announcement of the date for elections. He also referred to two Bills that the Government proposes to introduce in the Assembly. According to the Clerk of the Assembly, a date for convening the Assembly is yet to be set.
In response to the Opposition Leader’s letter, the President stated that the matters raised have been referred to the Attorney General ‘in the light of the relevant constitutional provisions and the rulings of the CCJ’.
Voters’ registration and preparing for elections
The President had argued that the current voters’ list is contaminated with at least 200,000 names and that house-to-house registration of voters is necessary to ensure ‘credible elections’ are held.
On 11 June 2019, just one week prior to the CCJ ruling, the then Chair of GECOM issued an Order in the Official Gazette for house-to-house registration of voters to commence on 20 July. Apart from the controversy about the timing of the Order as well as whether the Commission agreed for such an exercise to be conducted, the Opposition is claiming that in view of the CCJ ruling that Justice Patterson’s appointment was flawed and unconstitutional, the registration exercise should no longer proceed. It has urged its supporters not to cooperate with the exercise since it will be filing contempt proceedings against the Chief Election Officer. The PSC has also called for a suspension of house-to-house registration, contending that the exercise is unlawful, until a new Chairman is appointed to decide on the way forward.
Two Mondays ago, political commentator and Attorney-at-law Christopher Ram sought the intervention of the High Court to stop the house-to-house exercise on the ground that, apart from being a violation of the Constitution, it would result in elections not being held on or before 18 September i.e. three months after the CCJ ruling. The Chief Justice, however, declined the request since sufficient evidence was not provided to show that GECOM was not acting in a manner to ensure that the deadline is met. An affidavit was expected to be filed to show that the registration process would collide with the requirement for elections to be held within three months, after which a further hearing would be held. That hearing took place last Friday and a further hearing is scheduled for today.
In a press statement, the Supreme Court clarified that the Chief Justice had stated that the CCJ’s ruling was that elections must be held by 18 September 2019 or any other date as approved by the Assembly by at least two-thirds of all the elected members. (Emphasis added) This is in reference to what appeared to have been a misquoting of the Chief Justice’s statement.
GECOM has confirmed that the house-to-house registration began and is expected to end in another three months and possibly earlier. One recalls the Commission indicating that it would take 148 days to arrive at a new voters’ list through the updating of the current list with the results obtained during the claims and objections period, instead of a house-to-house registration of voters. And at the CCJ hearing on the issuance of the consequential orders, the attorney for GECOM indicated that a revised list based on house-to-house registration would not be ready until around 25 December 2019. The last house-to-house registration took place in 2008 and lasted six months, excluding the period of public scrutiny and other procedures to arrive at a final list. GECOM’s spokeswoman, however, stated that the registration teams have been doubled to enable the exercise to be completed in the shortest possible time. She also stated that while the exercise is being conducted, preparations for elections would also take place.
Last Wednesday, the Government and Opposition-nominated Commissioners met separately with the newly appointed GECOM Chair. The latter group is insisting on using the current voters list, sanitized during a period of claims and objections instead of generating a new list based on house-to-house registration. On the other hand, the Government-nominated Commissioners are insisting that the current list is bloated, and that house-to-house registration is necessary to produce a ‘credible’ list. With the appointment of Justice Claudette Singh as the new GECOM Chair, we look forward to an urgent resolution as to the way forward. After the swearing in ceremony, she told reporters: ‘I am just hoping that I will do something for Guyana because there is one way: in accordance with the law, in accordance with the Constitution, and nothing else’.
Suggestions on the way forward
If GECOM can be held to its word that the house-to-house registration of voters currently under way will end in three months’ time and a new voters’ list, fully tested for accuracy and reliability, would be ready by then, it should formally communicate this information to the President. This will enable the President to dissolve Parliament almost immediately and set a date for elections any time after 20 October but not exceeding three months after Parliament’s dissolution.
If GECOM cannot provide such an assurance, and in order to comply with the requirements of the Constitution and the CCJ ruling, it will have to agree to use the current list, updated by the results obtained during a period of claims and objections. The new GECOM Chair will have to weigh all the facts and the arguments presented by the six Commissioners, before deciding on the way forward. Her vote is extremely crucial since both groups of Commissioners are deadlocked as to which approach GECOM should adopt.
In order to bring an end to the continued violation of Article 106 of the Constitution as a consequence of the 21 December 2018 no confidence vote, the Opposition should reconsider its decision and agree to return to the Assembly to approve of the extension of the deadline of 21 March 2019 for holding elections. The failure to do so will result in history judging us very harshly in relation to our democratic governance and respect for the rule of law, including pronouncements by the courts.
