The aftermath of the vote of no confidence and preparing for elections (Part VI)

[Sustainable Development Goal] 16 recognises that building peaceful, just and inclusive societies that provide equal access to justice and that are based on respect for human rights including the rights of development requires effective rule of law and good governance on all levels, and are transparent, effective and accountable to institutions. 

 United Nations Office in Guyana

Last week, we suspended our monitoring of events since the 21 December vote of no confidence, to give coverage to the controversy surrounding the decision to increase the threshold limits for Requests for Quotations and restricted tendering. As we regularly do in relation to public financial management (PFM) issues, we expressed the view that there has been no constitutional or legislative violation for reasons stated in the said article, except that the timing should have awaited the outcome of the elections. We did so in the belief that that laws are not written for only lawyers to read, understand and interpret; and that a person with a comprehensive knowledge of the practices of public finance and administration and with considerable experience in monitoring compliance with PFM laws and regulations, is in a unique position to offer a view.

Since the statement issued by the United Nations Office in Guyana on the stalemate involving the no confidence vote and the court’s ruling on the matter, several other organisations have expressed similar sentiments and have urged our elected representatives to put the public interest first and foremost by speedily resolving the current impasse.

Statement by the European Union

The European Union Office in Guyana called on all concerned bodies and stakeholders to uphold the Constitution, and to respect democratic procedures and the rule of law. The EU further stated that it: (i) welcomed the expeditious handling of the court cases; (ii) hoped that the further legal process can be expedited; and (iii) looked forward to free and fair elections being held in line with all constitutional provisions. Over the last 40 years, the EU has provided over G$20 billion in grants to construct and rehabilitate sea defences along Guyana’s coast and riverain areas.

Private Sector Commission Statement

The Private Sector Commission (PSC) added its voice by stating that the Chief Justice’s ruling remains intact until it is overturned by a higher court and that it expects the President and his government to respect and honour the ruling by calling elections before 21 March 2019. The PSC also expressed concern about public statements emanating from government sources that the status quo remains the same until the entire judicial process is fully exhausted, including possible appeal to the Caribbean Court of Justice. Accordingly, it warned that such statements could lead to ‘grave instability and an illegal government’.

Guyana Bar Association Statement

Following last Monday’s release of the Chief Justice’s written ruling, the Guyana Bar Association (GBA) stated that it welcomed the ruling and called for the announcement of the date of the General and Regional Elections. It noted paragraph 108 of the ruling:

I hold that the NCM was carried as the requisite majority was obtained by a vote of 33:32. The President and the Ministers cannot therefore remain in Government beyond the three months within which elections are required to be held in accordance with Article 106(7), unless that time is enlarged by the National Assembly in accordance with the requirements of the said Art 106(7).

The GBA warned that if the elections are not called within the three-month timeframe, it could lead to instability. It added that ‘[n]either the filing of appeals nor applications for orders staying the operation of the clear timelines fixed by the Constitution can stop the time from running within which elections must be held’ unless an extension is approved by two-thirds of all the elected members of the National Assembly. The GBA further argued that GECOM should have been in a state of readiness to conduct elections within three months. It therefore renewed its call on all parties concerned to take immediate steps to prevent a constitutional crisis and the dire effects such a crisis could have on the country.

Statement by Civil Society Representatives

Representatives of several civil society organisations, including religious bodies, the trade union movement, Guyana Human Rights Association, and Transparency Institute of Guyana Inc. issued a joint statement urging the Opposition Leader and the President to meet urgently to bring an end to the stalemate over the holding of general elections. The statement added that while the members would like to see compliance with the Constitution, a reasonable compromise can be worked out through extending the deadline to ensure adequate preparations are made for such elections.

Position of the Government

The President has indicated that the Government would continue to function as normal until the entire judicial review process to challenge the Chief Justice’s ruling is exhausted to the fullest. This appears inconsistent with the earlier statement made following the President’s 10 January 2019 meeting with the Opposition Leader that the Government would respect the ruling of the Speaker of the National Assembly while at the same time seek a judicial review of his ruling. We had interpreted the latter statement to mean that the Administration would adhere to the requirement to hold elections by 21 March 2019 (or such later date as approved by two-thirds of votes of the members of the National Assembly), unless within this timeframe the Court rules that the no confidence vote is invalid.

The Government has now chosen to ignore not only Articles 106(6) and 106(7) requiring the President and his Cabinet to resign and to hold elections within three months but also the decision of the Chief Justice to disallow an application for a stay of her decision and a conservatory order for the Government to remain in office. On Wednesday, the Court of Appeal will hear arguments from the Attorney General for a stay of the Chief Justice’s ruling to enable the President, the Cabinet and all the Ministers of the Government to remain in office until the challenge to the Chief Justice’s ruling is concluded.

An interesting argument being put forward is that without a Cabinet there can be no funding for GECOM to hold elections. However, the GECOM’s budget for 2019 has already been approved in the sum of $5.371 billion, compared with $2.257 billion allocated in the previous year. According the Minister of Finance, ‘[t]his is to facilitate early preparations and to ensure the smooth conduct of these most important elections’. It is not difficult to reallocate funds earmarked for house-to-house registration since, as a constitutional agency, GECOM has wide discretion in the use of its budgetary allocation. Article 222 of the Constitution states that the expenditure of such an agency shall be a direct charge on  the Consolidated Fund determined as a lump sum by way of an annual subvention. The subvention is to be managed in such a manner as it deems fit for the efficient discharge of its functions, subject only to conformity with the financial practices and procedures approved by the National Assembly.

Meanwhile, a senior Government official has disclosed that since the beginning of this month a ‘ministerial plenary’ comprising all the Ministers of the Government has been performing the duties of the Cabinet. However, when asked on what authority this is being done, he asserted that such action ‘drew its legitimacy from the powers of the President’.  It was also announced that the ‘plenary’ approved of the appointment of new board members for the National Data Management Authority and the VAT Tribunal; and ‘noted’ (for all practical purposes this constitutes approval) the award of six contracts valued at approximately G$280 million. It is evident that this ‘ministerial plenary’ is the Cabinet in disguise and to the extent that it performs the duties of the Cabinet, there has been a violation of Article 106(6) of the Constitution and a disregard for the ruling of the Chief Justice. 

On 11 February 2019, the Minister of Finance reportedly signed two loan agreements totalling US$31 million with the Inter-American Development Bank for the establishment of an electronic single window for trade and an energy matrix diversification programme, including the strengthening of the department of Energy. We had expressed the view that in the period between the no confidence vote and the holding of elections, no new agreements should be entered into.    

GECOM’s State of Readiness

In an earlier column, we had stated that GECOM ought to have been in a state of readiness to hold elections within three months, considering: (i) less than three months ago, it had successfully pulled off the local government elections which independent observers deemed free and fair; (ii) the configuration of the National Assembly where it takes only one Member of Parliament from the Government’s side to join the Opposition in a vote of no confidence. In fact, GECOM staff had reportedly met the day after the vote of no confidence was passed to discuss preparations for the elections.

GECOM has now indicated that the earliest it can hold elections is July 2019. This is on the assumption that an agreement is reached to use the current voters’ list as amended by the results of claims and objections; and to delay the planned house-to-house registration until after elections are held. The Commissioners are, however, deadlocked over whether the current voters’ list as amended, could be used; or a full-fledged house-to-house registration should first take place. The current voters’ list expires on 30 April 2019, and a house-to-house registration will take approximately nine months to complete.  

The Way Forward

With 31 days left for the deadline for holding elections, unless an extension is agreed on by the political Opposition, or the court decides to allow a stay of the Chief Justice’s ruling, it is inevitable a constitutional crisis will exist come 22 March if the Government remains in office. We call on the Government and the Opposition to: (i) set aside their differences and political interests; (ii) embrace the public good and the national interest; (iii) adhere to democratic principles and practices, and the rule of law; (iv) respect the ruling of the Chief Justice and the provisions of the Constitution; and (v) agree on a compromise position as to the way forward. Having elections in July 2019 is indeed not an unreasonable compromise.

In a society that of recent has become so polarized, we call on all Guyanese not to lose sight of their objectivity and independence of thought, speech and action; put their patriotism and the public interest above all other interests; and carefully weigh the actions of our elected representatives on the basis of careful analysis of facts and pertinent arguments before deciding on what position to take. The failure to do so is likely contribute to the widening of the tensions that currently exists and the consequences that are likely to follow.

Ministers cannot therefore remain in Government beyond the three months within which elections are required to be held in accordance with Article 106(7), unless that time is enlarged by the National Assembly in accordance with the requirements of the said Art 106(7).

The GBA warned that if the elections are not called within the three-month timeframe, it could lead to instability. It added that ‘[n]either the filing of appeals nor applications for orders staying the operation of the clear timelines fixed by the Constitution can stop the time from running within which elections must be held’ unless an extension is approved by two-thirds of all the elected members of the National Assembly. The GBA further argued that GECOM should have been in a state of readiness to conduct elections within three months. It therefore renewed its call on all parties concerned to take immediate steps to prevent a constitutional crisis and the dire effects such a crisis could have on the country.

Statement by Civil Society Representatives

Representatives of several civil society organisations, including religious bodies, the trade union movement, Guyana Human Rights Association, and Transparency Institute of Guyana Inc. issued a joint statement urging the Opposition Leader and the President to meet urgently to bring an end to the stalemate over the holding of general elections. The statement added that while the members would like to see compliance with the Constitution, a reasonable compromise can be worked out through extending the deadline to ensure adequate preparations are made for such elections.

Position of the Government

The President has indicated that the Government would continue to function as normal until the entire judicial review process to challenge the Chief Justice’s ruling is exhausted to the fullest. This appears inconsistent with the earlier statement made following the President’s 10 January 2019 meeting with the Opposition Leader that the Government would respect the ruling of the Speaker of the National Assembly while at the same time seek a judicial review of his ruling. We had interpreted the latter statement to mean that the Administration would adhere to the requirement to hold elections by 21 March 2019 (or such later date as approved by two-thirds of votes of the members of the National Assembly), unless within this timeframe the Court rules that the no confidence vote is invalid.

The Government has now chosen to ignore not only Articles 106(6) and 106(7) requiring the President and his Cabinet to resign and to hold elections within three months but also the decision of the Chief Justice to disallow an application for a stay of her decision and a conservatory order for the Government to remain in office. On Wednesday, the Court of Appeal will hear arguments from the Attorney General for a stay of the Chief Justice’s ruling to enable the President, the Cabinet and all the Ministers of the Government to remain in office until the challenge to the Chief Justice’s ruling is concluded.

An interesting argument being put forward is that without a Cabinet there can be no funding for GECOM to hold elections. However, the GECOM’s budget for 2019 has already been approved in the sum of $5.371 billion, compared with $2.257 billion allocated in the previous year. According the Minister of Finance, ‘[t]his is to facilitate early preparations and to ensure the smooth conduct of these most important elections’. It is not difficult to reallocate funds earmarked for house-to-house registration since, as a constitutional agency, GECOM has wide discretion in the use of its budgetary allocation. Article 222 of the Constitution states that the expenditure of such an agency shall be a direct charge on  the Consolidated Fund determined as a lump sum by way of an annual subvention. The subvention is to be managed in such a manner as it deems fit for the efficient discharge of its functions, subject only to conformity with the financial practices and procedures approved by the National Assembly.

Meanwhile, a senior Government official has disclosed that since the beginning of this month a ‘ministerial plenary’ comprising all the Ministers of the Government has been performing the duties of the Cabinet. However, when asked on what authority this is being done, he asserted that such action ‘drew its legitimacy from the powers of the President’.  It was also announced that the ‘plenary’ approved of the appointment of new board members for the National Data Management Authority and the VAT Tribunal; and ‘noted’ (for all practical purposes this constitutes approval) the award of six contracts valued at approximately G$280 million. It is evident that this ‘ministerial plenary’ is the Cabinet in disguise and to the extent that it performs the duties of the Cabinet, there has been a violation of Article 106(6) of the Constitution and a disregard for the ruling of the Chief Justice. 

On 11 February 2019, the Minister of Finance reportedly signed two loan agreements totalling US$31 million with the Inter-American Development Bank for the establishment of an electronic single window for trade and an energy matrix diversification programme, including the strengthening of the department of Energy. We had expressed the view that in the period between the no confidence vote and the holding of elections, no new agreements should be entered into.    

GECOM’s State of Readiness

In an earlier column, we had stated that GECOM ought to have been in a state of readiness to hold elections within three months, considering: (i) less than three months ago, it had successfully pulled off the local government elections which independent observers deemed free and fair; (ii) the configuration of the National Assembly where it takes only one Member of Parliament from the Government’s side to join the Opposition in a vote of no confidence. In fact, GECOM staff had reportedly met the day after the vote of no confidence was passed to discuss preparations for the elections.

GECOM has now indicated that the earliest it can hold elections is July 2019. This is on the assumption that an agreement is reached to use the current voters’ list as amended by the results of claims and objections; and to delay the planned house-to-house registration until after elections are held. The Commissioners are, however, deadlocked over whether the current voters’ list as amended, could be used; or a full-fledged house-to-house registration should first take place. The current voters’ list expires on 30 April 2019, and a house-to-house registration will take approximately nine months to complete.  

The Way Forward

With 31 days left for the deadline for holding elections, unless an extension is agreed on by the political Opposition, or the court decides to allow a stay of the Chief Justice’s ruling, it is inevitable a constitutional crisis will exist come 22 March if the Government remains in office. We call on the Government and the Opposition to: (i) set aside their differences and political interests; (ii) embrace the public good and the national interest; (iii) adhere to democratic principles and practices, and the rule of law; (iv) respect the ruling of the Chief Justice and the provisions of the Constitution; and (v) agree on a compromise position as to the way forward. Having elections in July 2019 is indeed not an unreasonable compromise.

In a society that of recent has become so polarized, we call on all Guyanese not to lose sight of their objectivity and independence of thought, speech and action; put their patriotism and the public interest above all other interests; and carefully weigh the actions of our elected representatives on the basis of careful analysis of facts and pertinent arguments before deciding on what position to take. The failure to do so is likely contribute to the widening of the tensions that currently exists and the consequences that are likely to follow.

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