‘Legality refers to what fits within the law and is compliant with a legal framework. It limits us and determines what we can and cannot do according to the law. Legitimacy, however, involves following a correct, fair, genuine, moral and ethical path. Legitimacy is symbolized by what is achieved with justice, what is deserved, what is inherited. Legality, on the other hand, can be symbolized by an official seal.’ (https://www.responsiblemines.org/en/2015/11/between-legality-and-legitimacy-which-is-more-important/).
What this simple definition suggests is that legitimacy is a personal/collective normative assessment of an act or institution; there are degrees of legitimacy and all governments seek out high levels of it and though legitimacy and legality are interrelated they are different concepts and the latter could rest upon so little legitimacy as to be deemed illegitimate. What all this means at the practical level is that for institutions that are involved in ruling people to be considered legitimate they must have the support or acquiescence of substantially all (90%) of those people and/or their representatives. Why the various groups hold the views they do is of interest if we want to seek solutions to the problem but until you could change their minds or gain their compliance by discourse and particularly if a regime tries to suppress them it becomes even more illegitimate and will be resisted.
From this standpoint the 1980 constitution was illegitimate until the 2001 reforms (although the PPP’s initial reluctance to change it brings this position into question) and since in practice those reforms did not get to the majoritarian root of the problem, that constitution began to lose the support of substantially all of us and we are presently living with the results. Notwithstanding its bad press on this its 40th anniversary I shall argue that the so-called Forbes Burnham constitution contains an unappreciated and sophisticated trajectory. Within the academic prescriptions of his time he grasped the long term vicissitudes of his ethnic and geopolitical context and set them in a quite progressive constitutional framework. The fact that this frame still exists and has never been properly utilised, even when advantageous opportunities presented themselves, can only be accounted for by the excessive negative propaganda and/or the truncated vision of the extant political leadership.
The so-called ‘Burnham constitution’ sought to achieve the immediate and long-term objectives of Forbes Burnham who, for personal and ethnic security reasons, sought to entrench himself and the People’s National Congress (PNC) at the summit of politics in a developing Guyana well into the future. In brief, by the 1970s most of the Africans leaders who had stayed with the PPP after the 1955 split had left; some accusing it of racism and this latter perception of it, as a racist party, in the African community is still very much here today. At the independence constitutional conference in the early 1960s the British offered shared governance as the way forward for Guyana but the PPP refused that offer. For his 1965 work on politics in West Africa, Sir Arthur Lewis, who is now considered the father of the shared governance regime, was advisor to many Caribbean governments including Guyana and became the Chancellor of the University of Guyana in 1966. Therefore, Burnham’s understanding of his ethnic context must have been rooted in a conceptual grasp of the nature of countries such as Guyana and the constitutional arrangements that were required if they were to be managed and develop in a timely manner.
Furthermore, Burnham was always on top of global politics and understood quite well that the PNC were the beneficiaries of international capital belief that the leadership of the PPP was ‘communist.’ Something of a socialist himself, he well knew and played upon the geopolitical juxtaposition between himself and the PPP in the era of the ‘containment’ of communism. To further secure himself and acquire added leverage and policy space he located his party firmly in the developing world by way of such agencies as the Nonaligned Movement, the Commonwealth, the United Nations, etc. All of this allowed him to manipulate elections to stay in government but to make some quite radical socialist/nationalist moves, e.g. nationalization, that, however, were never too far removed from the ideological positions of the decolonialization movement.
But, by 1980 the 1975 Helsinki Declaration of President Jimmy Carter and his National Security Advisor, Zbigniew Brzezinski, was already undermining the supposedly solid Soviet ideological phalanx and was becoming the manifesto of the dissident and liberal movement in the Soviet bloc. If in 1976 Burnham felt it sufficiently safe to publicly declare that his PNC was guided by Marxism/Leninism, the global anti-communist trend was continuing and by the time President Ronald Reagan came to office in January 1981 … his crusading anti-communism represented a challenge of a vastly different qualitative nature in terms of its frontal and explicit objective of overturning leftist regimes in the region and beyond’ (Ferguson, Tyrone – 1999 – To survive sensibly or court heroic death. Guyana National Printers Ltd, Georgetown).
One must not know Forbes Burnham to think that he would have presided over the writing of a new constitution without considering his and his party’s future in this developing local and global context. Indeed if one eschews the propaganda and carefully considers the 1980 constitution against this conceptual and practical backdrops its intrinsic value would not have been repeatedly missed. With the 1980 constitution he sought to establish a governance framework that is compatible with his goal and context but was still sufficiently flexible to produce relevant accommodative developments. Burnham died, the PNC has remained at the apex of Guyanese politics but still locked with its traditional enemy in the same old destructive ethnic battle that he hoped would have by now withered
Last week I argued that in semi-presidential systems the presidency is highly differentiated from the government, i.e. the prime minister as head of government and his cabinet and so the latter can resign or be removed in other ways without affecting the position of the president. In Guyana the president is chosen by the National Assembly from the party with the highest plurality of votes at the national elections and is not only the head of state but also the head of government. The position of PM is largely titular and by giving the presidency to the party with the largest plurality, the legislature’s choice of a president is largely a formality with two pregnant long-term consequences.
Firstly, without the need for any reform the existing constitution framework could become a potent instrument of social inclusion and cohesion if one chose to appoint an individual of opposite ethnicity as PM with greater autonomy, i.e., more or less day to day control of the government. This would have been more in keeping with normal semi-presidential systems and under the existing constitution would have meant no loss in real power for the president and his party. In 2015, the PNCR and the Alliance for Change (AFC) agreed to the Cummingsburg Accord that promised to allow the Prime Minister to be the chair of cabinet, have certain say in the selection of ministers, etc. but immediately upon winning the elections the PNCR reneged on most of this agreement. By doing so it undermined the AFC and thus contributed to the downward slide of that party. A similar opportunity now presents itself to the PPP/C. However, given the depth ethnic alienation has reached, though still worth trying, it is now doubtful that this halfway house will suffice.
Forbes Burnham of course had another idea: by a simple change in the constitution that keeps the plurality president but formally gives the PM and government to the party/parties that win the legislature he could have peacefully ushered in an era of shared governance that is normally only won by much civil destruction. In the context of only winning a plurality and sharing government between the PPP and a smaller party in an ethnically divided society he would have hoped that a good experience of shared governance would have led to its acceptances by the PPP that by this time was getting around to accepting the idea. That initially, elections manipulation would have been less severe and resonated less negatively particularly in a context where the PPP’s historical communism and opposition to shared governance are well recognised.
The ethnic context is becoming more diverse and attempts by both of the larger parties with their majoritarian instincts to manipulate elections are counterproductive and dangerous. Rather than quarrelling about who is or is not legitimate, the parties had better take a page out of Burnham’s book: try to properly grasp the intellectual underpinnings of their condition and their local and geopolitical relationships. Perhaps then the political future for Guyana will be less dim.
