The way is now clear for Local Government Elections (LGE) to be held on June 12th, after Chief Justice Roxane George SC yesterday threw out another action which sought to challenge the holding of those polls.
Following lengthy delays, LGE were initially scheduled for March 13th of this year but this did not materialize, as arguments over constituencies and how lists were to be extracted for the polls caused setbacks in the scheduled timeline.
Opposition party, A Partnership for National Unity (APNU) filed a court action contesting the method used by the Guyana Elections Commission (GECOM) to compile the voters list.
On Tuesday, Chief Justice George threw out that application, ruling that contrary to APNU’s contention, it is the official list of electors (OLE) from which the voters list for the LGE has to be complied.
In her ruling yesterday on the application which sought to challenge the boundaries of constituencies and Local Authority Areas, the judge said that contrary to the contention held by APNU, it is the Minister of Local Government who is responsible for the demarcation and not GECOM.
APNU had contended that the decision of GECOM to change the boundaries of 37 constituencies in 19 Local Authority Areas was unlawful. On this basis the party argued that the elections ought not to be held as GECOM had breached Article 72 of the Constitution.
It was against this background that it was asking the court to quash the commission’s decision and prohibit it from holding the election, set for June 12th.
Chief Justice George said that in accordance with Section 4(1) of the Local Authority Election Act, it is the Minister who is empowered to divide Guyana as he deems fit into 10 regions and may in like manner also divide regions into sub regions, a sub region into neighbourhoods and a neighbourhood into people’s cooperative units.
The proviso to that section she notes also states that it is the minister who may, by order divide any area comprised in a city or town as he deems fit.
Section 5 she then added, permits the minister to establish local democratic organs for any area into which Guyana has been divided under Section 4 and that Section 5 then gives him oversight of such local democratic organs including the modifications of the boundaries of the area of any local democratic organ.
The judge said that Section 5(a) states that neighbourhood democratic councils (NDCs) are to be local authorities to which the Act applies.
She said that it is in the context of so dividing Guyana and creating or modifying areas of local democratic organs, “that it is the minister who must be guided by Article 72(2).”
She said that pursuant to Section 38(a)(5) GECOM may, by order combine or subdivide one or more electoral divisions to form a constituency for the purpose of electing members of that local authority.
“So GECOM is not concerned with division into local authority areas, nor is it establishing or changing boundaries” as APNU sought to argue the Chief Justice stressed, while she added that the local authority areas are identified by the minister and it is the electoral divisions within those local authorities that she said GECOM can combine or sub-divide to form constituencies.
Endorsing the argument put forward by attorney Kurt Da Silva for GECOM, Justice George said that it is the minister who determines the number of local authority areas and the councillors by increasing or decreasing their numbers.
She said that therefore, it is not GECOM that has increased or decreased the number of councillors or council members for the local authority areas and thereby correspondingly caused an increase or decrease in the number of constituencies.
On this point she said that the Applicant’s assertion that it was GECOM that did so “is incorrect.”
The Judge said that GECOM could not ignore the minister’s order regarding the reformulations of the boundaries and constituencies as “it was obliged in keeping with its mandate under Article 162 of the Constitution and Section 3 of the Act to ensure that there were constituencies to match the number of councillors that the minister had determined for each local authority area.
In setting the numbers for the councillors, the judge said that the minister “tangentially fixed the numbers of constituencies.”
Justice George said that having reviewed the evidence, GECOM does not have to apply the criteria outlined in Article 72(2) as the Applicant sought to advance in deciding what electoral division to combine or subdivide in order to form constituencies within the local authority areas as was established by the ministerial order.
The Chief Justice said that the Applicant was really relying on the contention that the configuration of the constituencies would be unfair to its party (APNU).
But the judge said that that was not an issue for the court as prejudice to a particular party could not be considered by either the court or GECOM. She added that even it could be entertained by the court, the Applicant provided no evidence to substantiate the claim, while noting that political considerations could not be countenanced by the court.
In dismissing the application, the judge ordered that costs be paid to GECOM in the sum of $250,000 no later than July 14th.
When the matter came up for hearing on Tuesday, Attorney General Anil Nandlall SC and attorney Sanjeev Datadin for Vice President Bharrat Jagdeo made requests to be added as parties.
The AG and Datadin argued strongly that given the public interest nature of the matter, they out to have been allowed to participate in the proceedings. Datadin had added that Jagdeo as a member of the governing PPP/C party has a direct interest in the polls.
Justice George, however, ousted them both and dismissed their applications, noting that as an autonomous body, GECOM was capable of representing itself.
She noted, too, that the issue to have been resolved was between the applicant and GECOM and that neither Jagdeo nor the AG could make any useful contribution to the specific issue which the court had to consider.
She said, too, that their intervention would only have unnecessarily delayed the entire process.
Attorney Lyndon Amsterdam had submitted the view that Nandlall and Jagdeo only wanted to intervene in a bid to address the consequences of any possible favourable outcome to the Applicant and to safeguard their own political interests without being able to deal with the legality or lack thereof of the actions of GECOM.
Background
APNU’s case was filed in the name of its Chief Scrutineer Carol Smith-Joseph who argued through Amsterdam that the elections could not be held as the changed boundaries and reformulated constituencies were unlawfully done.
Arguing that the reconfiguration of the constituencies was done in breach of the constitution as well as the Local Authority (Elections) Act, Joseph contended that should the election be conducted in those circumstances, “the prospects of success of the APNU will be severely prejudiced.”
In an affidavit in support of Joseph’s claim, Opposition Commissioner Vincent Alexander said that Minister of Local Government and Regional Development Nigel Dharamlall attempted to “unilaterally” change and/or establish the boundaries of 37 constituencies within 19 Local Authority Areas, without constitutional regard.
It had been Alexander’s contention that when reconfiguring a constituency, certain criteria must be assessed before setting a boundary. In this regard, he had said that it might require extending boundaries of part of an existing constituency due to population growth or shift.
