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.
I adopt the sentiments of Lincoln Lewis, who writes frequently on constitutional matters. He said in last Sunday’s Chronicle: “We are facing a very serious situation and what I am about to say is intended to right a ship, veering wildly off course and posing dire implications for the rule of law, the legitimacy of the executive, and protecting the well-being of the society.” Mr. Lewis cited the following instances where the authority of the executive and limits of the President have been exceeded: 1. The termination of leases in the MMA; 2. (Mis)Interpretation of criteria for Gecom chair; 3. The termination of Red House lease; 4. Seeking to possess the property of Clarissa Riehl; 5. Instructions given to the Police Service Commission not to act on a list for promotions. While Mr. Lewis’s did not explicitly say so, his conclusion is that the court rulings suggest that the constitution is being violated.
A strong editorial in the Stabroek News of August 21 did not mince words. Additional violations were cited in extenso:”…the directive issued by Minister of State Joe Harmon on June 26 to the Police Service Commission (PSC) in the name of President Granger for the halting of the police promotions process must be condemned as an attack on constitutionalism….Given President Granger’s flawed reading of the constitutional provisions relating to the appointment of a Chairman of the Guyana Elections Commission, his unconscionable delay in acting upon the recommendations of the Judicial Service Commission and the May 2015 attempt by Minister Simona Broomes to issue an instruction to the Public Service Commission, which was later ruled ultra vires by the High Court, a pattern of highly worrying behavior has emerged. It is clear that when it suits the President and the government to ignore constitutional precepts – in this case the vital insulating of service commissions – it is prepared to do so. Two and a half years into its term of office, this tendency is rife with jeopardies to constitutional rule and the rule of law. It also adds to the unpleasant legend of the PNC’s undemocratic rule of the 70s and 80s, the flying of colours of the party over the Guyana Court of Appeal and the entrenching of paramountcy of the party as enshrined in the Sophia Declaration.”
Being away for the past six weeks allowed me the luxury of leisurely contemplating Guyana from afar. The news emerging was not encouraging. The prison was burnt down and prisoners escaped; then more escaped from Lusignan. A disaster waiting to happen, it was said, but nothing of significance was done to prevent it. Perceptions of the Constitution, where it differed from the Court’s, were given equal weight. Secret dealings with ExxonMobil are justified on blatantly flawed and trivial excuses. Budget allocations are not being disbursed thus limiting economic activity and job creation. Rupert Roopnaraine resigned, then changed his mind.
Freddie Kissoon and Kaieteur News continue their decades long, personal, vendetta against me, because of an apology he and KN were forced to make to me more than twenty years ago. In pursuance of his hate campaign, Kissoon regurgitates stories that I have already fully answered ten and more years ago – answers which he does not reveal when he rambles on, ad nauseam.
Two Fridays ago a seminar on Constitutional Reform the Process, was held at the University of Guyana. The event, which was well attended, was organized by the Carter Centre and facilitated by the British High Commission. The PPP and a cross-section of civil society were represented, but conspicuously absent was any APNU or AFC party or Government representatives. The discourse focused on why there should be constitutional reform and the process by which it should be undertaken. The event was not intended to have a formal conclusion but to have Guyanese ownership.
Many ills of the society that needed redress were identified. There were concerns that elected officials were interfering in the democratic right to protest, of political intermeddling in Amerindian affairs, of the need for equity in the society, of implementing the existing provisions of the Constitution, of educating young people about the issues, and everything in between. The debate around the issues raised was lively and energetic. The fact that the audience remained attentive and engaged throughout the three-hour event suggested that there is much interest in constitutional reform and scope for more debate.