– former committee members
The implementation of agreed constitutional reforms is limping along after almost a decade, raising questions about the sincerity of the political commitment to the process.
The reform process was propelled by the unrest that followed the December 15, 1997 general elections, which led to an escalation of ethnic tension and violence. The Herdmanston Accord was subsequently brokered by a Caricom mission, providing for measures that included constitutional reform, which it felt could contribute to a resolution of the existing problems.
It was signed on January 18, 1998, but the Constitution Reform Commission (CRC) was not sworn in until a year later with a six-month timeframe within which to complete its work. In addition to representation from the parliamentary political parties – the PPP/C, the PNC, TUF and the Alliance for Guyana (AFG) – it included representatives from several civil society groups, among them the major religions, the labour movement, the private sector and women’s organisations. The reforms were later refined for implementation by a Special Select Committee and an Oversight Committee on Constitutional Reform, both set up by the National Assembly.
“The reasons for constitutional reform in Guyana are not abstract,” said Dr Rupert Roopnaraine, who was a member of the CRC, in an interview with Stabroek News last week. “There are compelling reasons why we should carry out this work in a serious and committed way if we want to settle this country down and get on with the business of nation building and development.”
He added that the architects of the Herdmanston Accord had concluded that at the heart of the country’s predicament was racial division, which necessitated a re-examination of the 1980 constitution to engineer reforms to respond to what he described as the “fault-lines” in the society. In this regard, Roopnaraine warns about the failure to address the problems created by the coincidence of a winner-take-all system along with ethnic rule. “Ask yourself the very simple question: Why should a people who can never win a contest under its present rules, continue to play this game,” he said, while also criticising Caricom for failing to carry out an audit of the Herdmanston pact.
‘Shifting the centre
of gravity’
Roopnaraine explained that the main thrust of the constitutional reform process was “shifting the centre of gravity of governmental power” away from the executive towards the National Assembly and constitutional commissions. But he added that the process has shown that the executive is growing “more retentive” about the power it enjoys and seems reluctant to relinquish any of it.
In particular, Roopnaraine bemoans the failure to properly activate the parliamentary Standing Committee for Constitutional Reform, which is intended to continually review the effectiveness of the constitution and make proposals for reforms. One of the innovations of the reform process was the provision for the Standing Committee for Constitutional Reform to be able to co-opt experts to its membership, whether or not they are members of the National Assembly. However, this provision has proven to be a point of contention between the parties.
According to him, the creation of the committee was also intended to replicate “one the greater strengths” of the CRC–its broad-based composition. He said it was unfortunate that upon the completion of the CRC’s work, civil society dropped out of the picture and the work was handed over to the political parties.
Pointing to the continuing debates about shared governance and issues about the presidency in the press, Roopnaraine said they should be engaging the attention of the committee. “It is there to carry out a continuous review of the constitution and make further recommendations that might be necessary,” he said, calling it the most disappointing implementation failure.
The delay in the implementation of reforms have also created problem for the local government system, Roopnaraine explained. Among the current reforms proposed is an electoral system that mixes equally proportional representation and first past the post, for which local authority areas are to be divided into constituencies. Roopnaraine describes it as an unworkable compromise, saying that if the parties are interested in putting the process in the hands of the people there should be a first past the post system, with a small number of seats reserved to correct disproportionality.
Further, he also pointed out that it also creates a situation where a citizen could claim discrimination when constituencies are demarcated for first fast the post and PR voting. “If I were in a constituency categorised in the list system, I can argue that I am being discriminated against because I want the right to elect my own councillor. There seems to be a good case to be made for discrimination in relation to the demarcation of constituencies,” he said, “Why should I give up the right to directly elect my own councillor and be forced to deal with a list over which I have no control?”
Vincent Alexander, another former member of the CRC, said there was no expectation that the implementation of the reforms would take as long as it has. He thinks there has been “no proper re-engagement” with constitutional reforms, and also cites the failure to set up the Standing Committee for Constitutional Reform as a disappointing. “There is no exhibition of will to further the reforms,” he said, adding that in addition to the major issues, other non-controversial issues, like the dropping of “Cooperative” from the name of the country, have not been tackled. Other issues, he said, would require a referendum. “But the government has not said a word,” he declared.
According to him, the delay in implementation demonstrates that there was “no real commitment to the reform process” by the governing party, which he believes participated in the process in order to placate the instability in the immediate post-December 1997 period.
A 90-day promise
Last March, following the Lusignan and Bartica massacres, national stakeholders, including parliamentary parties and civil society representatives met President Bharrat Jagdeo to formulate solutions to the upsurge in crime in the country. Among the agreements were for the appointments of the six constitutional commissions to be appointed within a 90-day timeframe. The commissions were described as “key features” of the governance framework. The stakeholders also agreed for the convening and activation of the parliamentary Standing Committee for Constitutional Reform to address current issues before it and to examine further areas for constitutional reform.
Since that time, the Rights of the Child Commission and the Women and Gender Equality Commission have both been appointed, while the Appointive Committee is working on settling the list of entities to be consulted for nominations to the Indigenous Peoples Commission.
Last month, PPP/C MP and presidential advisor on governance Gail Teixeira, who also chairs the
Appointive Committee, said she was “extremely hopeful” of reaching agreement on the Indigenous Peoples Commission before the parliamentary recess, thereby being able to set up the Human Rights Commission by year end. “We are anxious to move forward,” she told the National Assembly.
Under Article 212N(3) of the Constitution, the Chairperson of the Human Rights Commission is be appointed by the President from a list of six persons, not unacceptable to him, submitted by the Leader of the Opposition after meaningful consultation with entities with experience in human rights matters.
“Nobody expected it should have been taking so long,” said Jean La Rose, who had been the Vice-Chairperson of the Commission. La Rose, who had been nominated to represent Indigenous Peoples, noted that the Indigenous Peoples Commission has still not been named, a concern that indigenous rights groups have raised continually with the administration. “It is something that we have brought up over and over again,” she added.
Although the National Toshaos Council has been set up, she pointed out that it lacks the necessary “teeth” to deal with the issues that ought to be dealt with by the Indigenous Peoples Commission. One example is the conflict between miners and indigenous communities, La Rose said, explaining that concessions are still being granted in the middle of titled communities.
Under the Constitution, the Indigenous Peoples Commission is responsible for establishing mechanisms to enhance the status indigenous peoples and to respond to their legitimate demands and needs. Its functions include promoting and protecting the rights of indigenous peoples, raising awareness of the problems facing them and promoting their empowerment, especially with regard to the village council in the local government system and the scope of the Toshaos Council.
La Rose also noted that what eventually emerged from the subsequent select committees that dealt with the CRC’s recommendations was not in keeping with the original deliberations, particularly as it relates to the composition of the Indigenous Peoples Commission. “We were looking at a balance,” she explained, while expressing concern about the nominating entities outside of the Indigenous Peoples NGOs and the National Toshaos Council.
Meanwhile, the Public Accounts Committee (PAC) has been trying to complete the nomination process for candidates for the Public Procurement Commission since 2003. However, wrangling over the numerical composition of the Public Procurement Commission is continuing to stall the nomination process.
Roopnaraine, however, is doubtful about the effectiveness of the commissions and committees even if all are set up. He noted that their ability to function in the way they are intended hinges on access to effective resourcing. “You can set up as many commissions as you wish,” he said, “But if you don’t have the resources for them to be operational then you defeat the purpose.” Ideally, he added, the parliamentary committees would be funded in a similar manner to the PAC, which he described as an ideal model of how committees should be resourced and function.
Also, Roopnaraine pointed out that parliamentary productivity is also retarded by having only part-time Members of Parliament, a situation which he said would not be ideal in a fully functional parliament. Indeed, Speaker of the National Assembly Ralph Ramkarran has spoken of the need for full-time MPs to become a reality if parliamentary oversight to ensure accountability is to be effective
Ad hoc?
Reforms of the electoral system also remain to be completed, Roopnaraine said, adding that the current electoral system is an ad hoc arrangement agreed to by the Oversight Committee in order to meet the Herdmanston deadline for the holding of the 2001 elections. “We are yet to hold elections under a new constitution,” he said, adding “We didn’t do it in 2001, when ad hoc reforms were agreed to.”
Currently, the constitution provides for a system of proportional representation that ensures that the proportion of seats in parliament achieved by each party is as close as possible to the proportion of votes it received from the electorate. Although proportional representation produces a proportional house, Roopnaraine said the CRC had noted that the connection between the MP and the geographical constituency has been sacrificed in the process. “We felt strongly that part of the breakdown in the in representation and accountability had to do with the fact that MPs were no longer accountable to the people who elected them,” he said.
He also noted that when the PR system was foisted upon the country, the single list presented candidates in order of priority, allowing electors to have an idea of whom they were voting into office. As a result, the CRC recommended that the PR lists should be presented to the electorate in a manner that allows voters to be sure which individuals they are electing to the National Assembly. The CRC added that this principle would be breached if lists were presented simply in alphabetical order or if ‘cross the floor’ were permitted.
The CRC had recommended that the electoral system should include an element of geographical representation, which ultimately led to the use of the 10 administrative regions as constituencies allocated 25 of the 65 seats of the National Assembly. The law provides for a further 40 top-up seats to correct the disproportionality when constituency votes are counted–although Roopnaraine said the number is excessive, explaining that mathematically it would only require between five and 10 top-up seats to correct the disproportionality. He added that the arrangement was intended to be temporary as it was expected that after 2001 the process of constitutional reform would be completed. “It is a great tragedy and something the parties should be more alert to,” he said, adding that to go to the next general elections with the same arrangements would be a farce.
