Dear Editor,
Perhaps for the first time since the enactment of the Commission of Inquiries Act (COI), and its most recent amendments, the President of Guyana has purported to appoint a commission of inquiry under chapter 19:03, without a gazetting. On September 14, the Attorney General made the rather detailed listing of the issues intended to be inquired into by the distinguished commission. Such a communication would surely indicate to the eminent persons chosen by him the ground they were expected to travel. This must have been so since the President announced on a Friday, that by the following Tues-day, he would make the names of the members of the commission public. And he was true to his word.
The President’s intervention came after the Guyana Elections Commission had decided on a casting vote not to produce a review of the 2020 general and regional elections. In the first government announcement, there was no disclosure of the powers the President would use in naming the commission of inquiry. It was only clear that the work of this commission, as distinct from its terms of reference, would be concerned with the general and regional elections held in Guyana on March 2, 2020.
To satisfy widespread curiosity at the announcement, the Government quickly floated the idea that members of the commission would soon meet to settle the terms of reference. Here we come upon the first Constitutional irregularity. The COI Act gives the President the power to create the terms of reference. Once this power is exercised with due consultations it can rightly be lodged in the President who after all is an elected official. The members of the commission are not chosen by the Guyanese electorate, and cannot be presumed to be competent to devise terms of reference answering to their concerns. The foregoing paragraphs are written on the assumption that the President, as the COI Act declares, can properly appoint a commission of inquiry on any issue or set of issues that in his opinion need to be examined for “the public welfare.”
In my opinion, however, there is a superior test to be applied in examining the activity of members of the executive of the state. The actions they take must also be Constitutional and responsive to all the measures of legality. In support of this argument, we get help from Article 8 of the Guyana Constitution. The article describes the Constitution as the supreme law and lays down that any other law that is inconsistent with the provision of the Constitution shall be void to the extent of the inconsistency. My layman’s reading of the Constitution of Article 8 allows me to apply it to actions taken under any law, and to argue that the general power given to the President in 19:03 applies broadly but does not apply and should not be made to apply to matters from which the executive is excluded by clear provisions of the Constitution. One of these is the subject of elections and the various issues to which they give rise.
As in a previous letter published in the Stabroek News, I hinted that if the Commission of Inquiry on Elections does not confine itself in its terms of reference to matters like expenditure by the Guyana Elections Commission, and the state of public order during and after the elections, I know an old man who would be applying to the High Court for certain declarations. I have listened to comments made by lawyers and by the leader of the opposition. I think that the Government can win some well-needed consensus if the terms of reference of the Commission, already half-appointed, were directed to an inquiry exploring the reasons why prosecutions by persons charged with serious electoral offenses since July-August 2020 are still awaiting their first day in court, and why an election petition filed within the required time limits has not been heard. I fear that the terms of reference, rightly and wrongly, leave the impression that rival courts are being established.
It is my wish in public affairs to be fair even to the most powerful official in the republic of Guyana, who styles himself “everybody’s President.” I must therefore ask publicly whether the President was driven to resort to the advice of creating the Commission of Inquiry because of lapses of duty elsewhere. I refer to the statutory duty laid in the Representation of the People Act (ROP Act) on an official who has been described, rightly or wrongly, as “a creature of the Guyana Election Commission,” to prepare as early as possible a general review of each general election. Respected citizens need not only infrastructure but explanations and information which can help them make a critical examination of the Government, its various institutions, and even of their own preferred political parties.
Sincerely,
Eusi Kwayana
