Dear Editor,
On 21st December 2018 the APNU+AFC Coalition lost a no-confidence motion. Article 106(6) of the Constitution says the Cabinet including the president shall resign. From that moment on, Guyana had no president and no ministers.
Article 106(7) says that “notwithstanding its defeat” the government remains in office. A sovereign state must have a ‘government’ at all times; no constitution would create a vacuum. But this ‘defeated’ government is not a democratically elected government. It is reduced to ‘caretaker’ status as held by Chancellor Cummings-Edwards and the Carib-bean Court of Justice (CCJ.
The CCJ held that a caretaker government must “restrain the exercise of its legal authority.” The Caretaker Conventions in Westminster export-model parliamentary democracies establish that ‘restraint’ means that government business is restricted to what is routine, non-controversial, or reversible by a new government without undue cost or disruption. Urgent action in the public interest must also be done with restraint. The APNU+AFC caretaker government clearly breached the Caretaker Conventions.
Article 106(7) required elections within three months. The APNU+AFC caretaker government disobeyed the Constitution, challenged the no-confidence motion in court and lost. The CCJ allowed a ‘pause’ on the time up to their decision on 18th June 2019. So, the APNU+AFC caretaker government had to call elections by 18th September 2019 at the latest. In effect the caretaker government held on to office for an extra six months through a spurious legal challenge.
The caretaker government again disobeyed the Constitution by failing to call elections and failing to obtain an extension. From 18th September 2019 the APNU+AFC caretaker government ceased to be a de jure caretaker government under the Constitution. They became an unconstitutional and illegitimate de facto administration with no right to be in office. There are no legal, political or moral grounds that justify power sharing with an illegitimate administration.
The Guyanese people have been without a democratically elected government since 21st December 2018 and it is urgent to move on.
1. GECOM must immediately remove from its website Mr Mingo’s purported declaration for Region 4. It is in breach of the Chief Justice’s order and is an unlawful declaration that can be struck down by the courts.
Constitutional and administrative law has long eschewed procedural niceties and abstruse legal arguments in favour of substantive law. Ouster provisions and procedural requirements for election petitions cannot be used to subvert the constitutional requirement that seats are allocated on the basis of the votes cast by the electorate and not on the basis of numbers made up by a returning officer.
The judiciary’s role is to make clear decisions that uphold the rule of law and constitutional guarantees of democracy. Public confidence requires that the courts do not act, and do not appear to act, in any way that allows an illegitimate unconstitutional de facto administration to remain in office.
2. Proceedings for contempt of court against Mr Mingo must be completed. The court must have the opportunity to demonstrate uncompromising respect for the rule of law. Obviously GECOM must remove Mr Mingo.
3. GECOM must complete the verification and tabulation of the contested 458 SOPs in an open and transparent manner in accordance with the decision of the Chief Justice, and then make a valid declaration. There is no need to redo the 421 SOPs that were verified, tabulated and accepted by all parties. Those numbers stand. The law clearly states that after a declaration the parties have until noon the following day to request a recount. At that point a valid recount of region 4 votes can start if any party still thinks that it is necessary.
4. Mr Granger and Mr Jagdeo must respect the electoral system and abandon their political agreement for a national recount. In regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 the results were declared without controversy – a testimony to the GECOM personnel in those areas. APNU+AFC requested a recount in 2 regions then abandoned the recount. Legally the scanned declarations on GECOM’s website are now the official final results for these nine (9) electoral districts based on the verification and tabulation of the official SOPs. These declarations show that the APNU+AFC coalition party got 100,871 votes and the PPP/C party got 152,400 votes – a difference of 51,529 votes.
There is no public controversy over the numbers in regions 1, 2, 3, 5, 6, 7,8,9, and 10. A national recount will only cause further unnecessary delay that does not benefit the Guyanese people. It also looks suspiciously like another attempt by the de facto APNU+ AFC administration to delay and stay in office.
Every day that Guyana has an illegitimate, unconstitutional de facto administration, undermines the rule of law, damages Guyana’s international reputation, damages the economy, and puts Guyanese lives at risk because there is no de jure government to respond effectively to Covid -19.
It is critical for Guyana to move immediately to a de jure government that reflects the will of the people based on votes cast and electoral integrity.
Yours faithfully,
Melinda Janki
