No interpretation of the constitution or any law should support the holding of general elections in a democratic society until the major participants are satisfied that the quality of the electoral list will allow for free and fair elections. To do this would be to undermine the very purpose of a constitution that is not there simply for us to obey but to deliver justice inclusive of peace, security and prosperity. Lex iniusta non est lex (An unjust law is no law at all) – so said St. Augustine, St. Thomas Aquinas and Martin Luther King Jr. Legal theory has its roots in the idea that the purpose of laws is to deliver justice. Indeed, for the British legal philosopher HLA Hart (1907 –1992) ‘distinguishing between the question ‘What is law?, and the question ‘What is morally right?’ has the salutary effect of reminding people that not all laws are morally good and that officials may be held accountable even for their lawful actions when those actions are sufficiently wicked.’ (https://www.britannica.com/topic/philosophy-of-law).
I believe that it would be extremely self-serving to understand the nature and context of contemporary Guyana and yet make political decisions that can possibly lead to an undemocratic outcome. As the saying goes: ‘Nah tek fiyah stick ah night for wha you can see in the day!’
Over the last few months, without forbearance and restraint both parties and their cortèges of lawyers have been doing their utmost to diminish the status of the law in the eyes of the public by making all manner of untenable claims of what is and is not lawful, overloading the courts and begging them to do what should be the work of politicians, namely discourse and compromise. A country in which the politicians cannot do politics cannot be democratic or effectively governed, and this has been the historic condition of Guyana. The Caribbean Court of Justice (CCJ) wisely directed the major protagonists towards discussion and compromise, but instead of seizing the opportunity, similar discourses are being rehashed in the courts and the media. Blame for the current impasse is not the CCJ’s: it lays squarely at the door of the politicians and the lawyers who, instead of encouraging the politicians to do politics, feed them all manner of unhelpful interpretations.
In order to make the populace aware of elections manipulations and what to do to try and prevent them, using ‘How to rig an Elections’ (Cheeseman Nicholas and Brian Klaas (2018), Yale University Press), this column has recently identified a range of rigging strategies of which multiple voting is said to be perhaps the most notorious. ‘Such schemes are made possible by the fact that some people don’t turn up to vote and dead voters often remain on the electoral roll long after their passing. This allows the supporters of candidates to vote in the names of the deceased and those who fail to show up, without the risk of ending up with more ballots being cast than there are voters –which is clear evidence of fraud. Of course, if the register of voters is reliable and up to date, the effectiveness of multiple voting is constrained.’
Therefore, quite apart from the inherent dangers mentioned above, all who care about the fairness of the elections process and particularly the smaller political parties with no capacity to even participate in rigging elections, should take a stand against multiple voting. In any case, no political party worth its salt will go to elections with a list that it believes is rigged against it, and nothing I have heard from the PPP/C thus far has shaken my belief that we should immediately do all we possibly can to make the next elections process as transparent and credible as possible.
In 1990, the PPP/C was prepared to give former President Desmond Hoyte an extra two years in office to clean up the electoral process after three decades of the PNC using, inter alia, the list to rig elections. I recognise that the PNCR is not demanding a new voters list out of the goodness of its heart but because the various elections results since 2011 have led it to conclude that the PPP/C has substantially more questionable supporters on the existing list. Thus the claim that since the government side won two elections 2011 and 2015 and was prepared to go into the local government elections with the current list it must be reasonably good, altogether misses the point. The focus should not be upon the fact that the APNU+AFC won but upon how much it expected to win by and that must have surpassed the less than 5,000 vote majority it received!
For me it does not matter why the PNCR is cleaning the list: it is a political good and should be done after two decades of PPP/C’s rule. Normal best practice suggests that continuous registration is a timelier and more efficient method for updating elections lists, but Guyana is not normal: regimes with strong ethnic support that will do almost anything to keep them in government have been in office with de facto significant influence over the various elections commissions for decades. It is only logical for an incoming regime to want a completely new list. In almost every area of our social life starting with Guyana’s inappropriate constitution because we usually misdiagnose our situation we tend to adopt solutions that are inappropriate for Guyana’s unique political condition.
All the cajoling and shouting in the world will not prevent the PNCR from wanting the list cleansed. It is not only that the PPP/C is protesting too much based upon flimsy constitutional grounds, but the regime has now come to believe that the entire no-confidence process was manufactured to prevent the house-to house (HtH) registration that the PPP/C strenuously objected to from the minute it was raised in about mid-2018. What concerns me is that the PPP/C has chosen not to participate in the process, leaving the door wide open for the PNCR to complete a credible process!
The regime has now gone to court to overturn the Chief Justice’s recent ruling that other than those in the specified legal categories, no one should be taken off the list. Experience suggests that by the time this legal process comes to an end, the HtH registration will be completed and the regime is most likely to want to stay in office until the court gives is final decision! Furthermore, if GECOM proceeds without a final court decision and that decision states that names could be taken off the list, elections completed with names on it will most likely be deemed null and void.
Aspiring for a new up-to-date electoral register is a good in itself and should not be thwarted by insubstantial constitutional/legal interpretations. Added to this, the PNCR feels that the list is bloated and given its strength, location and history, its concerns cannot be resolved by legal dogmatism: what is required is political action. But unable to do politics, the politicians have again gone to court. So let me suggest a way forward.
In this discordant environment, the six so-called ‘independent’ GECOM commissioners are unlikely to want to rattle their principals with ‘subversive’ ideas. The CCJ made GECOM a player, and so the chair should quietly go above the commissioners, testing and hopefully devising a way forward. Ultimately, she might have to take an unpopular decision, but the record must show that she did so only after considerable effort and the involvement of all the important stakeholders. To attempt to make decisions that reject the concerns of any of the parties or seek to stymie the legal process without such efforts would be morally wrong.
