The rule of law is a cornerstone of democracy. This is also enshrined in the Commonwealth Charter and the Commonwealth Latimer House Principles. Due observance of constitutional democracy and the rule of law in Guyana rests, in large measure, with the conduct of the various branches of government. All must be faithful to the spirit and letter of the Constitution and operate within the parameters given to each by the Constitution.
Commonwealth Secretary-General, Patricia Scotland
Last month was the hottest month in recorded history with polar ice shrinking to its lowest level. In Iceland, which is losing 11 billion tons of ice annually, a bronze plaque is being unveiled to mark the loss, through climate change, of the first of its 400 glaciers, Okjokull. Among the inscriptions are the words “415 ppm CO2” in reference to the highest concentration of carbon dioxide in the atmosphere recorded last May. According to one of the researchers:
By memorialising a fallen glacier, we want to emphasise what is being lost — or dying — the world over, and also draw attention to the fact that this is something that humans have ‘accomplished’, although it is not something we should be proud of.
(https://www.yahoo.com/news/iceland-commemorates-first-glacier-lost-climate-change-014848918.html)
The main greenhouse gases – carbon dioxide, methane and nitrous oxide – have a reached their highest levels in 800,000 years. Former Vice-President of the United States and leading climate change advocate, Al Gore, asserted that the problem is ‘getting worse faster than we are mobilizing to solve it’. He, however, felt that there is also some good news since there is ‘an upsurge in climate activism at the grassroots of all 50 States here in this country and in every country in the world’. Gore acknowledged that climate change is ‘a global crisis that requires a global response’, and that to be successful, climate policies require international cooperation. He also felt that the United States has a responsibility to facilitate this cooperation. (https://abcnews.go.com/Politics/climate-change-worse-faster-mobilizing-solve-al-gore/story?id=64862944)
In 2016, the Paris Agreement on climate change came into effect, signed by 195 countries with the objective of curbing the use of planet-warming fuels and encouraging the generation and use of renewable sources of energy. The goal is to keep a global temperature rise this century to well below two degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius. U.S. President Donald Trump had claimed that climate change was a hoax perpetuated by China. As a result, the United Stated withdrew from the Agreement.
In today’s article, we continue to track developments in the last week or so on Guyana’s preparation for national and regional elections following the vote of no confidence in the Government, the rulings and consequential orders of the Caribbean Court of Justice (CCJ), and the appointment of the new Chair of the Guyana Elections Commission (GECOM).
Legal challenge to the house-to-house registration Order
The Leader of the newly-formed Liberty and Justice Party, Mr. Lenox Shuman, sought judicial review, challenging the validity of the Order issued by the then Chairman of GECOM, Justice (Ret’d) James Patterson, for the conduct of house-to-house registration of voters. Mr. Shuman’s argument is that since the CCJ ruled that the process used to appoint Mr. Patterson was flawed and therefore unconstitutional, this effectively renders the Order made under his hand also void. The house-to-house registration began on 20 July 2019 and to date some 245,000 persons have reportedly been registered.
Last Tuesday, the Chief Justice heard arguments from both sides on the validity of the Order. One such argument was that since Patterson’s appointment had been invalidated, all the actions he would have taken and decisions he would have made while he sat as Chairman are likewise void and could not be preserved by the de facto doctrine. (This doctrine relates to all acts performed by officials in their official capacities, which although not legal, are carried out in the public interest.) The Chief Justice then enquired whether the local government elections, which were held last November under Mr. Patterson’s chairmanship, would therefore have to be declared void. To this, the attorney for Mr. Shuman responded that there has been no challenge before the court. The Chief Justice is expected to hand down her ruling on Friday.
Chief Justice ruling on house-to-house registration of voters
Chartered Accountant and attorney-at-law Christopher Ram had sought the intervention of the court to stop the house-to-house registration of voters on the grounds that it violates the letter and spirit of Articles 106(6) and 106(7) of the Constitution and the rulings and consequential orders of the CCJ.
Last Wednesday, the Chief Justice ruled that the exercise aimed at compiling an official list of electors for holding general and regional elections, is not unconstitutional. She, however, held that persons previously registered, including those residing overseas, cannot be removed from the register of voters unless certain criteria have been met as provided by for the law, such as death or disqualification. In addition, persons who change their addresses through a new house-to-house verification process or by registering at a district office, would have to vote in the district in which they were registered. Existing registrants could also not be deleted from the list just because they are absent from the country or district in which they ordinarily reside or even if they are not at home at the time enumerators visit. According to the Chief Justice, the laws in Guyana do not provide for a residency requirement and as such one does not have to be residing in a particular area to be registered.
The Chief Justice noted that the CCJ refrained from setting a date for the elections and stated that she was bound by the ruling of the higher court. According to the Chief Justice, it is the role of the President and GECOM to agree on a date, and the political parties should return to the National Assembly to approve an extension of the timeframe as required by Article 106 (6) of the Constitution. She further stated that GECOM, as an independent constitutional body, has the right to execute its mandate as it sees fit. At the same time, however, GECOM must recognize it is not operating in the normal electoral mode, but rather against the background of a validly passed no-confidence motion.
Reaction to the Chief Justice’s ruling
The opposition party expressed satisfaction with the Chief Justice’s ruling. It argued that the ruling shows that, while the current house-to-house registration exercise is not unconstitutional, the names of persons cannot be removed from the register of voters except in accordance with the law. The party also referred to aspects of the ruling which stated that GECOM cannot operate as if it is in a normal election cycle and that residency is not a qualifying requirement.
Outcome of last Thursday’s GECOM meeting
GECOM was to have met last Thursday, the day after the Chief Justice’s ruling, to agree on the way forward in terms of the Commission’s readiness to conduct national and regional elections, and to inform the President accordingly. While a meeting did take place, other matters, such as an update on the registration exercise, were reportedly not discussed since the Commissioners prefer to await the Chief Justice’s written ruling. GECOM is expected to meet again today.
Implications for the national budget
For the past three fiscal years (2017, 2018 and 2019), the national budget was presented to and approved by the Assembly before the close of the year, which is a progressive step and a significant reform in public financial management. Previously, the budget was presented at the end of the third month into the fiscal year and was not approved until the end of April. During this period, no new capital expenditure works could have been undertaken, and monthly current expenditure was restricted to one-twelfth of the previous year’s approved estimates. Suffice it to state that since the national budget to a large measure sets the pace of economic activities in the private sector in any given fiscal year, a delayed budget can have an adverse effect on the country’s economic growth.
In addition, heads of budget agencies were in effect provided with 12 months of allocations for the execution of programmes and activities over a period of eight months. This practice had resulted in an acceleration of expenditure in the last quarter of the year in order to fully utilize budgetary allocations in an attempt to complete all such programmes and activities. In this compressed form, a significant number of irregularities have been uncovered over the years at some Government agencies, especially in the area of procurement, for example, absence of procurement planning, circumventing the competitive bidding procedures, contract-splitting, inadequate assessment of bids, faulty contract awards, overpayment to contractors, and defective work performed. Other areas of irregularities included the failure to surrender to the Consolidated Fund all unspent balances; delay in closing of the country’s books of account; back-dating of cheques to 31 December; failure to reconcile bank accounts; and, of course, misappropriation of funds.
There is no doubt that some of the above irregularities continue to this day. However, having a budget in place before the commencement of the fiscal year, supported by effective procurement planning, is likely to not only assist in the medium-to-long term in minimising the extent to which such irregularities are likely to take place but also ensure greater value for money is achieved for amounts expended on government programmes and activities.
Although GECOM is yet to pronounce on its readiness to conduct national and regional elections, there have been suggestions that the earliest such elections could be held is December 2019. This is on the assumption that GECOM would agree to continue the current house-to-house registration to its conclusion, which seems to be a plausible outcome of today meeting in the light of the Chief Justice’s ruling. If this happens, it would no longer be possible for the 2020 national budget to be presented to and approved by the Assembly before year-end. In such a scenario, the earliest we can expect the budget to be presented to the Assembly is sometime in February 2020. Allowing for the debate which will follow as well as other parliamentary procedures, an approved 2020 budget is unlikely before April 2020, which is one month earlier than what had prevailed in the pre-2017 years, and four months after the current arrangements.
If, on the other hand, elections are held in October, with some dedicated effort, it is possible for the national budget to be approved before year-end. This is also on the assumption that preparatory work has not stopped because of the interim status of the Government and the objections raised by the opposition. In a previous article, we were at pains to point out that budget preparation is a legal requirement and there are strict timelines involved, irrespective of the political situation in the country.
We await the outcome of today’s GECOM meeting.
