Chairperson of the Guyana Elections Commission (GECOM) retired Justice Claudette Singh has made submissions to the Ministry of Parliamentary Affairs and Governance outlining some concerns with the proposed amendments to the Representation of the People Act (RoPA).
The government, through the Ministry of Parliamentary Affairs and Governance, released the draft amendment on November 5, 2021, and set a six-week period for review, comment and to propose additional amendments. That process ended mid-December with no announcement of an extension but Parliamentary Affairs Minister Gail Teixeira had related that the process remains open.
Last week Tuesday, Attorney General Anil Nandlall announced that he has started meeting with groups that made submissions on the proposed amendments. He has already met with the private sector and civil society body – Electoral Reform Group (ERG).
The draft amendments are a result of the attempts to rig the March 2 2020 general and regional elections, which saw a five-month delay between balloting and the declaration of the final results.
As a consequence of the events of the March 2020 elections, several former GECOM officials, including Chief Election Officer (CEO) Keith Lowenfield, Deputy CEO Roxanne Myers, and Region Four Returning Officer Clairmont Mingo, and political party officials were charged with election-related offences.
One of the major changes the government proposes is the division of Region Four, the country’s largest electoral district, into four sub-districts – East Bank Demerara, East Coast Demerara, North Georgetown and South Georgetown – effectively adding a new section to Section 6 of RoPA, which deals with polling districts and divisions.
Among the proposed amendments are the introduction of hefty fines and lengthy jail time for several election-related offences. The fines are in the millions while jail time ranges from three years to life.
In her letter to Minister Teixeira, the GECOM Chair said that the electoral laws should be consolidated, pointing out that the Election Laws (Amendment) Act No 15 of 2000 amended RoPA, the National Registration Act and the Local Democratic Organs Act. She recommended that “…the amendments be inserted in the relevant Acts for easy reference and compliance.”
Justice Singh pointed out that Section 96(2) of RoPA enacts that the Chief Election Officer shall prepare a report manually and in electronic form for the benefit of the Commission to declare and publish election results. However, there is no statutory provision for the Chair or Commission to receive copies of the Statements of Poll (SOPs) to aid it in the declaration and publication of such results.
“It is recommended that this section should be amended to provide that the CEO’s Report should form the basis for discussion by the Commission for the purpose of a declaration,” the submissions stated.
This proposed reform is seen as strengthening the role of GECOM in the final declaration. The current legislation appears to make it seem that GECOM is bound to accept the CEO’s final report. This had been an issue in the 2020 elections when the CEO submitted a clearly erroneous report and defied the directions of the Chair.
On the issue of providing ID Cards for polling agents and alternate polling agents as proposed in Section 6 (2), the Chair submitted that it is customary that all categories of agents receive authentic IDs issued by the CEO. She said that the proposal for party election agents to undertake that task that can result in persons not properly qualified showing up at Polling Stations posing as agents.
“Any provision that authorizes the preparation and issuance of identification cards for agents, by party agents will create serious problems as it places unrestricted power in the hands of Party Agents for all contesting political parties to do so. If this were to be allowed, GECOM will have no way of ascertaining that the identification cards are authentic and could therefore refuse to recognize the card – an act for which it is intended to carry grave punitive measures,” the Chair said.
Justice Singh added that the preparation, production and issuance of identification cards for all agents, by GECOM, will be unique in design, structure and content. She pointed out that the amendment must also be further amended to include the need for the ID cards to carry the photograph of its bearer.
Section 34(1) of the proposed amendments outlines that no later than 21 days before the election, the returning officer for every district shall identify the polling places and give notice of the poll. This must be done in consultation with the elections agent of each list.
However, Justice Singh submitted that the provision can result in delays in the finalization of the list of polling stations in a reasonable time, identifying that the phrase “…after consultation with the election agent of each list of candidates” should not form part of the amendment. She went on to add that it be changed to obligate the returning officer to share the list of polling stations within a reasonable time and address any concerns raised by the party agent.
“Basically, ‘consultation’ in this instance must not be used by an election agent to hold a returning officer hostage thereby stalling the finalizing of the list of polling stations,” she opined.
Countered
When it comes to voting by the disciplined forces, the amendments propose that balloting be done no earlier than 10 days or later than five days before election day. But this was countered by Justice Singh who said that it be further amended to provide that balloting be done no more than 14 days earlier or later than 10 days before e-day.
The GECOM Chair added that as it relates to the removal of the names of disciplined forces members who voted from the OLE, the provision runs contrary to the Commission’s practice. She explained that the final OLE would have a straight electronic line drawn through the names of the members of the disciplined forces that voted prior to e-day and then it is printed and placed in the respective ballot boxes. That procedure has proven to be effective and as such the GECOM Chair is adamant that it should remain in place.
Cementing her submission on the point, Justice Singh argued that there is a legal requirement for the CEO to certify the OLE and for them to be posted at polling stations. If that is not done then it opens GECOM to litigation.
“The removal of the particulars of persons who votes before election day from the OLE to be used on election day will actually be an OLE different from the one certified by the Chief Election Officer. The proposed amendment also carries the potential for the creation of severe confusion/commotion at polling stations,” she submitted.
The GECOM Chair also contended that such a loophole can be “deliberately” used by the politicians to discredit the conduct of the elections arguing that the Commission deliberately omitted the names of members of the disciplined forces. She concluded by saying that the process has worked and should be retained.
Section 6A(2) of the proposed amendments to RoPA states, “the copies of the lists given to each polling agent under subsection 1(a) and (b) shall remain the property of the polling agent after the close of poll.”
In relation to that provision, the GECOM Chair argued that considering the confidential nature of the registration records and the fact that polling day folios contain more information than on the OLE, the retention of those records may be improper. However, she suggested that the polling agents can retain their copies of the OLE that they used to mark off persons that voted.
Justice Singh also raised some questions in relation to the National Registration Act noting that the government should look at the Chief Justice’s ruling in Ram v AG which decided that the Commission cannot remove a name from the National Register of Registrants.
Not a collective decision
GECOM Commissioner Vincent Alexander told Stabroek News that the submissions by Justice Singh were made in her capacity and not as a proposal of the Commission. He said that at last week’s statutory meeting, he made a proposal for the Commission to begin looking at the proposed amendments to make a collective submission.
“We agreed that it should have the input of the legal office and then we make the submission as the full Commission,” Alexander said.
He reminded that the Opposition-appointed side of GECOM has submitted a way forward with how the Commission should treat the proposed amendments.
