APNU+AFC was shell-shocked after inviting the PPP/C Opposition to “bring it on,” that is, the no confidence motion. ‘Bassady’ by the head blow of the Charrandass Persaud’s supportive vote of the NCM, they unsteadily promised to comply with the Constitution and hold elections in three months. Then reality stepped in. Somebody discovered the fiction that the human body of a parliamentarian could not be divided in half and that the majority of 65 was really 34. Most Guyanese would have disagreed with the notion that a parliamentarian would not be willing to have his/her body divided in half. We are all aware of the patriotic displays by parliamentarians on both sides of the House during Sittings. Quite often the Speaker has to intervene in exasperation to quell raucous nationalistic fervor. As it turned out, the sacrifice was unnecessary as history repeated itself. From Mustique in 1985, to Herdmanston in 1998, to the CCJ in 2019, Caricom and its agencies have consistently rescued the PNC/PNCR/APNU, or enabled it to rescue itself. And the international community’s fit of conscience about Guyana in the early 1990s has clearly not survived.
There is no mystery about article 106 of the Constitution. In 1999-2000 the PPP/C appeared to be firmly ensconced in office. The traffic of MPs across the floor had historically been only one way, from the PPP to the PNC. With this in mind, supporters of the then Opposition PNCR and their allies felt that if they were able to encourage that traffic to continue, and they were able to acquire the support of a majority of the members of the National Assembly, the PPP/C Government might not have been willing to observe the convention and resign on a successful no confidence motion or decisive defeat. Hence article 106. The provision requiring the Cabinet to resign was obviously inserted to enforce the caretaker status after a no confidence vote. PPP/C Governments had refused to recognize the existence of such a convention, hence its enshrinement.
When Justice Claudette Singh was sworn in, she reminded us that when she was on the bench she was dubbed “The Iron Lady.” The newly appointed Chair of Gecom obviously intended to convey to the public that she was a decisive person, who tolerated neither nonsense nor delaying tactics. It was a clear indication that she intended to sweep away the cobwebs of obfuscation, chop a path through the forest of gridlock using “the law and nothing else”- her words. Now is the time. Gecom, over which Justice Singh has a decisive, one vote authority, must not be allowed to dance to the tune of delay, which everything that has happened since December 21 is about. There is probably no democratic country in the world in which a no confidence vote was passed against the Government that has failed to hold elections after eight months. And our argument in Guyana is on the list of electors.
In countries with a Westminster constitution as a significant characteristic, as in Guyana, where the executive sits in the Parliament, there is a long-standing convention that when a no confidence motion is passed against the Government, elections are promptly held. In 2001 the Parliament accepted the recommendation of the Constitution Reform Commission to include article 106 in the Constitution to provide for elections in three months if a no confidence motion is passed. The Parliament must have taken into consideration that if there is no constitutional provision and a no confidence motion is passed, the Government might ignore it. The Parliament also provided for the resignation of the Cabinet. The obvious reason was to institutionalise the caretaker status of the Government by confining the Government to largely administrative functions until the elections are held. In the absence of the Cabinet no major decisions could be taken.
Apart from recognizing its ‘interim’ status, the Government acknowledges no other consequence of the no confidence motion passed in the National Assembly on December 21, after it members challenged the Opposition PPP to ‘bring it on.’ Attorney General Basil Williams said at a symposium at the Marriot Hotel sponsored by AmCham during last week said that Guyana is not geared for a no confidence motion. He also repeated at that event what he has said, in and out of court, that the Caribbean Court of Justice has not fixed a date for elections, implying that such a date is at large and will be fixed when house to house registration is complete. The Attorney General plucked out of the context of Article 106 that the Government shall resign after the President takes the oath of office following the election and appeared to indicate that this applies to whenever “the election” is held. In fact, “the election” refers to “an election within three months” which shall be held after the Government’s defeat on a no confidence motion.
To this melee of confusion, the President says that he doesn’t fix a date for, and has nothing to do with, elections; that it is Gecom’s responsibility to fix the date and to manage the elections. But the President then summoned the constitutionally independent body to his office for discussions in the absence of the Leader of the Opposition and then, after the meeting with Gecom on August 15, makes a statement reeking of intimidation: “We will accept any formula or any rule or any decision which satisfies the requirement of a credible election.” The President, the Attorney General and other Government spokespersons have said repeatedly that only a house to house registration will produce a credible list of voters. So what will the President do if in his view the decision of Gecom does not satisfy the requirement of a credible election, that is to say, does not uphold its decision to continue and complete the house to house registration to create a new voters’ list?
At the last two hearings of the cases before the CCJ, the clear preference was expressed by the Court for a political resolution of the NCM (no confidence motion) case. The Court, like everyone else, is fully cognizant of the political implications of any consequential order, especially having regard to the disputes over the voters’ list. At the last sitting of the Court, the President, Justice Adrian Saunders, expressed exasperation that the parties did not even meet, much less have discussions on the way forward. The Court is obviously anxious that what appears to be an explosively political matter should have a political solution which would satisfy all parties, rather than orders by the Court which may satisfy no one or only one. At the time of writing the President and Leader of the Opposition have not met.
The legal challenges by APNU+AFC initially appeared to be only a play for time. It was successful because the Government has obtained several additional months of life. More time is expected but even more is being demanded. A new voters’ list by house to house registration is demanded on the basis of vastly exaggerated and unproved claims about alleged defects in the list. These claims are that the list is bloated by 200,000 names and 18-year olds are not registered. This is the same list that was used for the recent local government (LGE) elections and there were no complaints. 18-year olds were extracted from the national register which registers persons from the age of 14 for the list used for the LGE. The same will apply for the voters list for new elections. Claims and Objections (C&O) will take care of any omissions. The latest play for time is that the list will not be ready until December 25. Both the 1990 and 1997 house to house registration took approximately eighteen months. On the evidence of the past, therefore, once house to house registration starts, there will be no elections until the end of 2020, if then.
The Caribbean Court of Justice (CCJ) has ruled in two of the most important constitutional cases that have engaged its attention in its ten-year history. The cases from Guyana have their origins in Guyana’s troubled political history and struggle for ethno-political dominance. In the first case the CCJ decided that the appointment by President Granger of the Chair of the Elections Commission on October 19, 2017, violated the Constitution. In the second case, it decided that the no confidence motion passed in the National Assembly on December 21, 2018, in a 33 to 32 vote, was lawful and valid.
President Granger declared that the Government accepted the decision but insisted that the appointment of the Chair of GECOM was not flawed, and if it was, the CCJ must let him know what the flaw is. The CCJ had already noted that President did not reveal what were the flaws in the 18 names presented to him by the Leader of the Opposition for appointment as Chair of the Elections Commission. In any event, courts do not respond to political interrogation, and it is the job of the Attorney General to advise His Excellency.