Even though a statute puts power in the hands of a Returning Officer, that Returning Officer will understand that he holds in his hands the future and stability of Guyana as we go forward, because every vote must be made to count.
Mia Mottley, Prime Minister of Barbados & Chair of CARICOM
Free and fair elections are indispensable in a democracy. Such elections convey the people’s choice of leadership and in the absence of a credible process for determining the results, the legitimacy of any leadership installed is questionable.
Transparency Institute Guyana Inc.
The price of crude oil collapsed last Monday by a record 31 per cent, with Brent crude trading at $31.05 while WTI, slightly below $30. It was the single largest drop in any one day since the 1991 U.S. invasion of Iraq. Experts believe that the price could dip to below $20. This not good news for Guyana. On several occasions, we had warned against the over-dependence on oil revenues. Indeed, we have advocated ad nauseam about the need to actively promote a sufficiently diversified economy to not only guard against the volatility of oil prices but also reflect the fact that fossil fuels are an exhaustible resource and will one day come to an end. However, since 2015 when ExxonMobil announced the discovery of vast amounts of oil reserves off our shores, we have been so pre-occupied with the prospect of oil revenues that we became oblivious of the dangers of having a mono product economy as well as the Paris Accord on Climate Change that requires the progressive phasing out of the use of fossil fuels and replacing them with renewable sources of energy.
In last week’s article, we traced developments that took place in the first week of the post-elections period following the 2 March 2020 for general and regional elections. Today, we continue from where we left off in our discussion last week.
Chief Justice’s ruling and its aftermath
The PPP/C sought judicial intervention to restrain GECOM, the Chief Election Officer and the Returning Officer of Region 4 from declaring the elections results unless the declaration is done in accordance with the Representation of the People Act. Three injunctions were granted, and when the matter came up for preliminary hearing, lawyers for GECOM argued that the court had no jurisdiction to entertain such an application. However, having related the events that took place at GECOM’s regional office of Region 4, the PPP/C’s lawyers stated that the party was only seeking transparency and fairness in the electoral procedure, irrespective of which party is declared the winner; and the court has a responsibility to guard against fraud. The Chief Justice held that she had jurisdiction to hear the matter and proceeded last Tuesday to hear arguments relating to the substantive issued involved.
The following day, the Chief Justice held that there has been substantial non-compliance with the provisions of the Representation of the People Act by the Returning Officer for Region 4. GECOM’s lawyers had argued that there was substantial compliance with the Act although less than 50 percent of the votes cast for Region 4 had been verified. Of the 879 Statements of Poll (SOPs), only 421 had been verified. Accordingly, the Chief Justice ruled that the Returning Officer’s declaration on 5 March 2020 of the total votes cast was unlawful and in breach of Section 84(1) of the Act, and is void and of no effect. She further ruled that:
(a) The Returning Officer/Deputy Returning Officer must comply with Section 84(1) in ascertaining the total votes cast in favour of each list and make a public declaration of votes recorded for each list of candidates;
(b) GECOM cannot lawfully declare the results of 2 March 2020 elections until the Returning Officer/Deputy Returning Officer for Region 4 complies with and/or ensures compliance with the provisions of Section 84(1). Therefore, the injunction is granted restraining the Returning Officer from any manner whatsoever from declaring the votes recorded for each list of candidates before complying with or ensuring the compliance with the process set out in Section 84. The injunction is made final;
(c) The injunction granted restraining GECOM from declaring the total number of valid votes cast for each political party until the Returning Officer/Deputy Returning Officer for Region 4 complies with or ensures compliance with Section 84, is made final;
(d) The Returning Officer/Deputy Returning Officer for Region 4 must commence compliance with Section 84 (1) no later than 11 hours on Thursday, 12 March 2020; and
(e) In the interest of transparency, the Returning Officer/Deputy Returning Officer for Region 4 must decide whether the process of determining total votes cast in favour of each list by adding up the votes in favour of the list and in accordance with the SOPs, should be restarted or continued.
The tabulation of the results recommenced last Thursday. However, instead of using the SOPs as the basis, the Returning Officer reintroduced the spreadsheet that was the subject of controversy and serious disagreement by all the political parties, except APNU+AFC. The use of this document was again objected to, prompting the GECOM Chair to suspend the exercise to enable her to study the Chief Justice’s written judgment.
The tabulation exercise recommenced on Friday but was again not in accordance with the Chief Justice’s ruling. This resulted in the OAS mission withdrawing from the observation process. The mission stated that the process adopted by the Returning Officer for Region 4 to ascertain the results of the elections did not meet the required standard of fairness and transparency; and the legitimacy of any government that is installed in these circumstances will be open to question and would be a terrible blow to the country’s democracy.
The diplomatic missions of the United States, Canada, UK and the EU issued a strongly worded joint statement after observing what transpired on Friday that caused them to stage a walkout from the Returning Officer’s office for Region 4:
It was clear that a transparent and credible process was not put in place by the responsible officials. Further, we are concerned about intimidation tactics we observed against those seeking to ensure that a credible process is followed.
We must be clear that in the absence of a credible process, as directed by the Honorable Chief Justice, it is our view that any results for Region 4 which will impact the overall results of the 2 March elections will not be credible and a President sworn in on the basis of those results will not be considered legitimate.
The Commonwealth Secretary-General expressed similar sentiments. She stated that the Commonwealth Charter, to which Guyana ascribes, recognises the inalienable right of individuals to participate in democratic processes, in particular through free and fair elections in shaping the society in which they live; and if the tabulation of Region 4 results is not immediately and satisfactorily addressed in accordance with the Chief Justice’s ruling, this would represent a serious violation of the fundamental political values of the Commonwealth.
In a separate joint statement, the Commonwealth, EU and the Carter Center stated that the orders issued with the judgment should be complied with, and the tabulation process conducted and concluded accordingly; and unless and until this is done in Region 4, the election results cannot be considered credible. The Assistant Secretary for the U.S Department of State for Western Hemisphere Affairs added that ‘[d]emocratic nations can’t ignore this blatant disregard for rule of law. The world is watching. There is still time. Respect the will of the Guyanese people to choose their leader’.
Despite all the concerns raised, the Returning Officer for Region 4 announced late Friday evening the results of the poll for that region. All the political parties, except APNU+ AFC, are unanimous in their agreement that the results were tampered with. On Saturday, the Chair of CARICOM issued a statement indicating that the President requested CARICOM to field an independent high level team to supervise the recounting of ‘each and every ballot’ for all the Regions in accordance with the Chief Justice’s ruling; the Opposition Leader agreed to this; and both leaders commit themselves to abide by the results of the recount.
The events of 5 March will go down in history as a day of infamy for which all Guyanese should never feel proud. It was a day when attempts were made to thwart the will of the people to elect a government of their choice, thereby undermining democracy. Attorney-at-law Selwyn Pieters, an election observer, gave a vivid account of what happened on the day before through the day after, as reported by the Stabroek News in an article of 12 March 2020 entitled ‘Questionable tabulation for Region Four an injustice to all voters’. Last Friday will also go down as another day of infamy when the Returning Officer of Region 4 defied the Chief Justice’s ruling and related orders and proceeded to announce the results of Region 4 elections.
Further comments by the observer missions
Last week, we reported on the observations of the international observer groups on what transpired on 5 March 2020. Below are some further observations of the groups relating to other matters.
Lack of transparency in campaign financing
The EU observer mission criticized both the APNU+AFC and the PPP/C for the complete lack of transparency in campaign financing for the 2020 elections, and chided GECOM for doing nothing about it. Accordingly, it urged the authorities to have legislation in place to ensure transparency on the limits of contributions and who can finance election campaigns. We had argued for the longest while for legislation to be in place not only to provide a level playing field among the political parties contesting the elections as well as to guard against the winning party forming the government giving preferential treatment to those who have made financial and in-kind contributions to that party.
Abuse in the use of State resources
The EU observer mission spoke out against the use of State resources in the run-up to polling day. It noted that APNU+AFC took advantage of incumbency by misusing State resources to appeal to voters through development programmes and receiving donations for campaign events, especially in Region 9. The mission also stated that the PPP/C to a lesser extent did the same at the regional level, and in-kind vote buying in indigenous communities was a widely reported practice of both APNU+AFC and PPP/C. This was despite the fact that all the political parties contesting the elections were signatories to a Code of Conduct in which they pledged, among others, not to use state machinery, vehicles, equipment, personnel and the media to further their parties’ interest. However, the Code was signed just one day before the election campaign officially ended. GECOM therefore closed the stable doors after the horses had bolted!
It is accepted practice that government officials and the ruling party leaders refrain from launching new developmental programmes, such as the construction of roads and the provision of drinking water facilities. In the run-up to the elections, several new projects were initiated while for those that were in progress, their completion appeared to have been accelerated to facilitate announcements and media coverage to this effect just prior to the elections.
Bloated voters’ list
The OAS mission noted that the voters’ list for the 2020 general and regional elections contained 660,998 names which was relatively high compared with the estimated population of 785,000 persons. Accordingly, it recommended that the list be sanitised soon after the elections via house-to-house registration. In addition, persons who have attained 18 years should be included in the voters’ list during the period of continuous registration.
A house-to-house registration of voters had commenced last year but was aborted because of a court ruling that residency is not a requirement for registration, and that the names of persons on the voters’ list cannot be removed unless the persons are disqualified.
Previous recommendations for electoral reform unimplemented. The observer missions expressed dissatisfaction that previous recommendations to reform the electoral system were never implemented. This prompted Head of the CARICOM observer mission to comment as follows:
Guyana is still in the same situation electorally as it was all those years ago…It looks like we have to actually hold Guyana’s hands…It seems to me that they would have to go back to the basics because obviously what they have been doing is not working.
Expressing concern about the delay in releasing the results, she further stated that unless there are improvements and modernisation of the techniques of tabulation and counting of the results, the situation will remain the same.
Need for reform of GECOM
The Commonwealth mission again called for the establishment of a mechanism that is focused on electoral and constitutional reform:
A key issue repeatedly raised in our interactions was the urgent need for constitutional and electoral reform to address what stakeholders view as a complex and multi-faceted polarisation of the nation. These divisions are reflected in the composition, structure and operations of GECOM itself. It is essential that electoral processes be fully inclusive of different political stakeholders and minority groups
