Dear Editor,
The 1980 Guyana Constitution Article 106 was radically amended during the 1999-2001 Constitution Reform period by the addition of two new clauses 106 (6) and (7) based on the recommendations of the report of the Constitutional Reform Commission (CRC) of July 17, 1999 which provided for “the Cabinet, including the President, who is part and parcel of the Cabinet as provided for in Article 106, must resign if the government is defeated by a majority of all the members of the National Assembly on a vote of confidence” Please note that the CRC does not appear to have recommended a three-month period within which elections were to be held nor does it appear that it provided for an extension by a 2/3 majority of the National Assembly. The original recommendation as stated above meant that the government had to resign immediately and elections held forthwith.
The amendments to Article 106 which we know today were approved unanimously by the National Assembly in Act No. 17 of 2000.
Fast forward to December 21, 2018 when the first no confidence motion was ever debated in the National Assembly and passed and thus for the first time Article 106 (6) and (7) have been set in motion.
The response of the APNU+AFC Coalition Government to this constitutional requirement has been, shocking maybe to the younger generation, but cynically predictable, for many who are familiar with the true PNC creature that lurks beneath the outer covering of the APNU and AFC.
It is now 70 days since the no confidence motion was passed, seven weeks since the Speaker re-affirmed that the motion had passed, three weeks since the ag Chief Justice has ruled that the motion is valid and that the clock on the three months which began on December 21, 2018 is ticking.
The government has openly refused to comply with the Constitu-tion, the legislature and the judiciary within these 70 days and has gone to great lengths to delay the naming of a date for elections on or before March 19, 2019 including the use of the courts and threats to go to the Carib-bean Court of Justice to have the motion made invalid and or to stay the 90 days post December 21, 2018.
The Guyana Elections Commis-sion (GECOM) has also been exposed as part of this conspiracy to delay the elections and as of February 19, 2019, the GECOM is in gross violation of articles 106(6) and (7) and 162 of the Constitution.
Article 162 (1) of the Constitution states clearly that: “The Elections Commission shall have such functions connected with or relating to the registration of electors or the conduct of elections as are conferred upon it by or under this Constitution or, subject thereto, any Act of Parliament.”
By a four to three majority, the vote of the GECOM Chairman included, a vote at the February 19, 2019 weekly statutory meeting of GECOM, resulted in a decision to: 1) inform President David Granger that GECOM cannot conduct elections within 90 days after December 21, 2018; and 2) to inform President David Granger that GECOM needs funding for elections.
The PPP rightly and immediately stated that “GECOM’s refusal to begin preparations for General and Regional Elections, after the December 21, 2018 vote on the no-confidence motion, finds it complicit in frustrating the timeline for the constitutionally due elections. Additionally, there has been no effort to make a decision on what obtains in the short-term. There has also been no decision at the level of the Commission on when GECOM will be ready for elections.”
In other words the Guyana Elections Commission, a body headed by a retired Judge, has knowingly and willfully usurped the powers of the Constitution.
One must remember that holding elections within a short period is not something new. Article 69 (1) makes it clear that “each session of Parliament….shall begin at such time ( not later than 6 months from the end of the preceding session if Parliament is prorogued or 4 months from the end of that session if parliament is dissolved) as the President shall appoint by proclamation.” Therefore elections have to be held and a new Parliament inaugurated within 4 months.
Further Article 61 makes this even clearer that “the election of members of the National Assembly under article 60(2) shall be held on such day within three months after the dissolution of Parliament as the President shall appoint by proclamation.” These constitutional provisions are unambiguously clear.
This is not the first time that GECOM is operating under these constitutional provisions; these same provisions were in place for the 2001, 2006, 2011 and 2015 general and regional elections. GECOM has to comply with the Constitution. It cannot make up its own requirements. In fact, GECOM can only intervene to postpone elections to a specific date after the date has been appointed by the President for elections and only then due to “danger or serious hardship” either generally or in a particular area. Thus GECOM has no authority to state that it is unable to hold elections prior to the date of elections being announced. The constitution therefore expects that GECOM should always be in a state of readiness to hold scheduled and unscheduled elections and thus limited its powers to postpone or interfere with the date of an election only after the date was proclaimed by the President and only due to “danger and serious hardship”.
In addition, holding unscheduled elections within three months is also not new. Having prorogued the 10th Parliament on November 10, 2014 by proclamation published in the Official Gazette, President Ramotar on January 24, 2015 by Proclamation # 1 and # 2 of 2015 in the Official Gazette announced that general and regional elections would be held on May 11, 2015. On February 27, 2015 the President by proclamation #3 and # 4 of 2015 dissolved the 10th Parliament and the 10 Regional Democratic Councils. From the time of announcement of the date for elections, GECOM had 3 months and 2 weeks to hold general and regional elections, and 8 weeks from the time of the dissolution of the 10th Parliament in 2015. Elections were held as appointed.
Thus the announcement by GECOM on February 9th at a press conference that it needed 148 days (almost 5 months!) is a blatant attempt to deceive the Guyanese people and violate the constitution and provide the rationale for the President to further delay.
GECOM is always supposed to be in a state of readiness to hold elections, more particularly since the last continuous registration ended on July 8, 2018 and the Local Government Elections were held on November 12, 2018, it should have been efficiently and rapidly been able to put itself into operational mode to hold elections immediately after the passage of the no confidence motion on December 21, 2018.
However, the government and its appointees on the GECOM want no elections, in open violation of the no confidence resolution of the Legislature and the ruling of the Chief Justice. They want a new National House to House Registration as the means to have no elections until 2020. The government has said it has 5 years and it will stay in power for the full five years.
The second motion “to inform the President that GECOM needs more funds” to hold the elections is another perversity and again another violation of another article of the Constitution. Article 222A , an amendment that also arose out of the Constitutional Reform period, with regards to constitutional bodies such as the Guyana Elections Commission states “ In order to assure the independence of the entities listed in the Third Schedule –
(a) the expenditure of each of the entities shall be financed as a direct charge on the Consolidated Fund, determined as a lump sum by way of an annual subvention approved by the National Assembly…..
(b) each entity shall manage its subvention in such manner as it deems fit for the efficient discharge of its functions, subject only to the financial practices and procedures approved by the National Assembly to ensure accountability…”.
The Committee of Supply of the National Assembly on November 16th 2018 approved by majority vote the lump sum of $5,371,061,000 for GECOM for the period ending December 31, 2019. The sum $6,368,100,000 requested by GECOM had been reduced the Minister of Finance, Winston Jordan, who noted that the commission had indicated that there were sums left over from the previous year’s allocation.
The excuse now being presented using Section 80B (6) of the amended 2015 Fiscal Management and Accountability Act by the APNU+AFC government that any alteration of the agency’s annual budget must be approved by the National Assembly is deliberately misleading.
Section 80 B (1-5) and (8) comply with the provisions of Article 222A, that is that this is an annual subvention disbursed in a lump sum to the respective body within a month of the approval of the appropriation by the Minister of Finance. We are now learning that this has not been done by the Minister. Therefore, GECOM’s independence has been compromised as it has to ask the Minister to release monies already approved to it for its use.
S 80B (6) clearly prohibits the Minister of Finance from altering the appropriation to GECOM, as he is empowered to do with the appropriations of non-constitutional agencies. S80B (6) does not prevent GECOM from utilizing the “lump sum” as it sees fit to carry out its functions. Section 80B (6) can only be referring to supplementary financial papers not to the use of the funds already appropriated as Article 222A (b) makes it clear that “each entity shall manage its subvention in such manner as it deems fit for the efficient discharge of its functions…”
Therefore there was and there is nothing stopping or preventing GECOM from utilizing their 2019 Budget of $5.371B to prepare, manage and hold general and regional elections in compliance with 106 (6) and 106 (7).
Thus the issue of funding is yet another subterfuge by the government and GECOM to disregard the constitutional provisions and ensure that elections are not held within the constitutionally stipulated time of 90 days, March 21, 2019.
The President’s letter to GECOM in response to their two majority decisions and his letter to the Leader of the Opposition on the eve of his departure on Tuesday February 26, 2019 is reminiscent of what he did earlier in January—-buying time, buying sympathy, giving the impression that he is sincere in holding elections while openly disregarding and violating the constitution. The President is not unaware of the constitutional and legal provisions l have referred to in this letter. He is willfully and knowingly catapulting Guyana into a constitutional crisis never experienced before. On March 21, 2019 the President and the entire APNU+AFC government will be unconstitutional, illegal and unlawful.
History, which the President loves, will judge him harshly as the President who refused to comply with the Constitution, who held on to power despite having lost the mandate of the people to govern in the November 12th 2018 Local Government Elections and lost the confidence of the majority of the elected representatives in the National Assembly on December 21, 2018.
It is time for Guyanese, regardless of which political party they support, to stand resolutely in defending the constitution and our parliamentary democracy. This is no time to sit on the fence. Do we want to live in a constitutional democracy or do we want to return to living under a dictatorship?
Yours faithfully,
Gail Teixeira
