For more than twenty years the task of choosing a chairperson of the Elections Commission (GECOM) was without controversy. With the resignation of Dr. Steve Surujballi the President invited the Leader of the Opposition to submit a list of six, not unacceptable, names under article 161 of the constitution, which was done in December, 2016. The article requires the chair to be a judge, a former judge or a person qualified to be a judge (the “judge category”) or a fit and proper person. The President rejected the list in its entirety. He first suggested that only a person in the ‘judge category’ could be appointed but later amended that to indicate that preference must be given to the ‘judge’ category. The President also stated that all the names on the list must be acceptable and if one is not, he is entitled to reject the entire list.
At the invitation of the President, the Leader of the Opposition submitted a second list. This was also rejected by the President. The Leader of the Opposition continued the policy of engagement and indicated that he will submit a third list. However, by that time, Mr. Marcel Gaskin, of a new organization called RISE, formed to promote constitutional reform, brought legal-constitutional proceedings seeking answers to four questions. These were: whether the list must include a judge, former judge or person qualified to be a judge; whether the President must state reasons for deeming each of the six names unacceptable; whether the President is obliged to select a person unless he has decided that the persons are unacceptable; whether one person being unacceptable renders the whole list unacceptable. The Guyana Bar Association, entered a case as amicus curiae (a friend of the court) and made submissions. The case was heard before Chief Justice (ag) George-Wiltshire, who announced an oral decision on July 17. The 33-page written decision became available last week.
The stunning news, unprecedented in Africa’s history, broke on Friday morning that the Kenyan Supreme Court had overturned the results of the August 8 elections which the incumbent president, Uhuru Kenyatta, 55, had won with 54 percent of the vote. The six-bench Supreme Court ruled four to two in favour of a petition by Raila Odinga, 72, running and losing for the fourth time, with 44 percent of the vote, who claimed that electronic voting results were hacked in favour of Kenyatta. New elections were ordered in 60 days.
Chief Justice David Maraga, in delivering the ruling said: “After considering the evidence, we are satisfied that the elections were not conducted in accordance with the dictates of the Constitution.” The court said that the elections commission committed “illegalities and irregularities…in the transmission of the results,” the details of which will be set out in the written judgment to be delivered in 21 days.
There are approximately 2,000 prisoners in the five facilities in Georgetown, New Amsterdam, Mazaruni, Lusignan and Timehri. Of these 35 percent is on remand awaiting trial. The Georgetown Prison at Camp Street was designed to accommodate 600 prisoners but held in the vicinity 1,000. Violent incidents or escapes have occurred in Georgetown, New Amsterdam and Mazaruni in the past. There was always a great fear among those responsible for security that Camp Street could explode at any time. The problem of overcrowding was well known.
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‘Inappropriate recusals are potentially very damaging.’ This statement begins the concluding portion of an article by Professor Abimbola Olowofoyeku, Professor of Law, Brunel University, London, UK, entitled ‘Inappropriate Recusals’ in The Law Quarterly Review, April 2016.
The main basis for recusals by judges (or other adjudicators, including magistrates) is actual or potential bias or the appearance thereof. It is in the Judge’s discretion to do so. As far back as 1972 in the libel appeal of Jagan v Burnham in Guyana’s Court of Appeal, the then Chancellor of the Judiciary, E.V Luckhoo, rejected an application by Dr. Fenton Ramsahoye, appearing for Janet Jagan, to recuse himself on the ground that his brother, Lionel Luckhoo, was appearing for Burnham.
The judiciary is one of the three branches of Government. It is a vital component of our democratic system and for this reason needs to function with a high degree of proficiency. Even though most citizens go through their lives without having to invoke the assistance of the judiciary to protect or defend their rights against other citizens or the State, nevertheless the judiciary is a bulwark against the violation of those rights. Citizens need to be assured that there is a fair and impartial judiciary that can deliver justice in a timely manner in the even that they need to call on its protection.
In the business community, commercial disputes arise frequently, although, like the general population, most go through their business without ever having to revert to the judiciary to solve disputes. A judicial system that can rapidly resolve commercial disputes is necessary not only to keep business activity turning over but to sustain confidence in the business community, both local and foreign, to invest or continue to invest in Guyana.