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Guyana's unavoided crisis

Bruce
Golding

Sunday, March 10, 2019

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Guyana is now deep in the throes of a constitutional crisis. It didn't have to be there.

The Government lost a no-confidence vote in Parliament on December 21. Section 106 of its constitution requires that in such an event, “the Government shall remain in office and shall hold an election within three months or such longer period as the National Assembly shall, by resolution supported by not less than two-thirds of the votes of all the elected members of the National Assembly, determine”. That three-month period will expire on March 21.

In an article published in the Jamaica Observer on January 6, I had expressed the hope and optimism that the issue would be carefully managed. That optimism was then well founded. Both the Vice-President and Prime Minister Moses Nagamootoo, and the Opposition Leader Bharrat Jagdeo made mature and calming statements in Parliament immediately after the motion was passed. The following day, President David Granger agreed to a request by Mr Jagdeo that they meet to discuss the next steps.

From optimism to despair

That optimism has been shaken by subsequent developments. First, despite the initial assurance by Mr Nagamootoo that fresh elections would be held as required by the constitution, the Government challenged the validity of the no-confidence vote in the Supreme Court.

Having failed there on January 31, it took the matter to the Court of Appeal which is scheduled to hear oral submissions on March 15. It is uncertain when it will hand down a decision. At the same time, however, it refused the Government's application for a stay of the Supreme Court's decision and the effect of the no-confidence motion until the appeal is determined. Constitutionally, therefore, the March 21 deadline still stands.

The Government has signalled that if the appeal is dismissed, it will be taking the issue to the Caribbean Court of Justice (CCJ). It could be several months before the matter is finally decided.

The constitutional crisis arises because the time for initiating the procedures for elections to be held by March 21 has passed. The Representation of the People Act stipulates that nomination day must be not less than 32 days before election day. Nomination day, therefore, would have had to be no later than February 17.

The Opposition contends that the constitution does not give the courts any authority to extend the time within which the election must be held and that only the National Assembly, by a two-thirds majority vote, can do so. Up to now, the Opposition has remained adamant that it will not facilitate such a vote. Guyana is now facing a major rupture in its constitutional arrangements.

GECOM's shifting positions

The crisis has been exacerbated by the positions taken by the Guyana Elections Commission (GECOM). A month ago, it stated that it would need 148 days to complete preparations for conducting the election, which would place it well beyond the March 21 deadline.

Although more than 11 weeks have passed since the no-confidence motion, it does not appear that GECOM has begun any preparations at all for holding the election. Nor does it seem to have any intention of doing so because two weeks ago it announced that it would be reverting to its original work plan for 2019, which includes conducting a national house-to-house voter registration exercise. Given Guyana's huge land mass, which is 20 times the size of Jamaica's, such a process could well last until next year when a general election would normally be due.

GECOM itself has been plagued by controversy and setbacks. The constitution requires that its membership comprise six persons, three each nominated by the president and the leader of the opposition and a chairman acceptable to the president and chosen from a list of six persons submitted by the leader of the opposition.

In 2017, President Granger rejected the six names submitted by Mr Jagdeo. Two subsequent lists were submitted but were similarly rejected and Mr Granger then proceeded to unilaterally appoint a chairman. The Opposition unsuccessfully challenged the constitutionality of the appointment in the Supreme Court and Court of Appeal and is awaiting a final decision from the CCJ.

To complicate matters, the chairman — who is 85 years old and who exercises the deciding vote when, as is often the case, there is disagreement between the political representatives — has been in poor health and resumed work toward the end of January after being on medical leave for almost two months. To complicate matters even further, the chief elections officer was admitted to the Caribbean Heart Institute just over a week ago after complaining of chest pains.

The stalemate has already attracted international attention. Diplomatic representatives in Guyana have twice met with GECOM. A team from the Carter Center also visited Guyana last month to have consultations with GECOM. There has been no word of any engagement by Caricom or the Organization of American States, for both of which any disruption in the functioning of democracy in a member state should be a matter of great and immediate concern.

It is to be recalled that in January 2001 when the Supreme Court declared the 1997 elections to be null and void on the grounds that the requirement for each voter to present a national identification card — a change that had been supported by both the Government and Opposition — was in breach of the constitution, it was Caricom's intervention that secured an agreement between both sides for fresh elections to be held within two months.

Guyana's turbulent past

Guyana has had an unfortunate history of turbulence in electing its Government. The 1961 election, which was won by the People's Progressive Party (PPP) then led by Dr Cheddi Jagan, was accompanied by mass protests, a general strike and widespread violence in which several persons were killed. British troops were sent in to restore order.

Following the 1964 election in which the People's National Congress (PNC) joined with the United Force to form a majority in Parliament, Dr Jagan refused to handover power and had to be unceremoniously dismissed by the governor.

The four succeeding elections over the next 20 years (1968, 1973, 1980 and 1985) were all won by the PNC, but the results were bitterly disputed amid charges of electoral malpractices. Local political agitation as well as pressure from foreign governments and international organisations, led to major constitutional and electoral reforms in the early 1990s. For more than 25 years since then, Guyana's elections have been relatively peaceful and credible.

The PPP was returned to power in 1992 and maintained that position in the subsequent elections held in 1997, 2001 and 2006. In the 2011 election, the PPP won the presidency but the PNC joined forces with smaller parties to control the National Assembly — the first time in which Guyana had to function with a governmental arrangement where the executive and legislature were controlled by different parties.

In the 2015 election, the PNC-led alliance secured a narrow victory, winning by less than one per cent and securing a 33 to 32 majority in the National Assembly. It was this narrow majority and the flipping of a member of the alliance that resulted in the no-confidence vote in December.

The current stalemate has hardened. A meeting between President Granger and Mr Jagdeo last week yielded very little, with Mr Jagdeo insisting that the setting of a firm and early date for the election is a sine qua non of any further discussions. He argues that with GECOM having conducted the local government election last November, it should have no difficulty in managing an early general election.

Breaking the logjam

Guyana faces two options in resolving the impasse. One is to declare the earliest possible date for the election, taking into account the time reasonably required by GECOM to make the necessary preparations. This would provide a basis on which the Opposition would no doubt be inclined to facilitate a two-thirds majority vote in the National Assembly for extending the March 21 deadline. If this is done within the next few days and prior to the deadline, the integrity of the constitutional arrangements would be preserved.

This would mean — in effect if not in actuality — the Government abandoning its challenge in the courts of the validity of the no-confidence motion. The two principal grounds on which the challenge has been mounted are (a) that 33 does not constitute a majority of 65 since it exceeds one-half of the votes in the National Assembly by only one-half; and (b) that the inclusion of the votes of persons who hold dual citizenship and were therefore not qualified to sit and vote in the National Assembly effectively nullifies the no-confidence resolution.

Case law on both points suggests that the challenge is unlikely to be upheld by the courts.

The second option is for the election to be placed in abeyance pending the outcome of the legal challenge. This would be entering upon uncharted waters and the legitimacy of the Government beyond March 21 would certainly be called into question. It would also run the risk of inflaming political tensions and returning Guyana to the political turbulence of 50 years ago.

As I suggested in my previous column on the issue, Guyana cannot afford that regression and the instability it would cause. Too much of the promise of a much brighter future is at stake.


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