Dear Editor,
On September 17, 2022, a letter written by me appeared in the Stabroek News and Kaieteur News on the subject of the Commission of Inquiry (CoI) into the Regional and General Elections of 2020, in which I noted that the CoI Act gives the President the power to create the terms of reference, and emphasised that “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.”
I welcome the opportunity to respond, if somewhat belatedly, to the explanation given by a member of the staff of the Commission of Inquiry that appeared in the Guyana Chronicle of September 20, 2022, refuting my claim as inaccurate and noting “that on the very same day the CoI was appointed, the Instrument appointing the commission, in which the Terms of Reference were duly and expansively set out, was published in the Official Gazette of 13th September, 2022.”
However, my comments had been made on the basis of reports carried in the Stabroek News of July 17, 2022 (and also on the website of the Guyana High Commission in South Africa that same month), in which President Irfaan Ali “announced the establishment of a CoI into the 2020 elections,” and stated that it “will be headed by retired Trinidad Justice of Appeal Stanley John and includes former Attorney General, High Court Judge and Acting Justice of Appeal in the Eastern Caribbean Godfrey P. Smith SC; former Chair and Chief Elections Commissioner of India Dr S. Y. Quraishi; and former Chancellor (Ag) of the Guyana Judiciary Carl Singh.”
Significantly, the newspaper reported President Ali as saying that “when he last spoke to the Chairman, retired Trinidad Justice of Appeal Stanley John, in the previous week, it was indicated [to him] that the Commissioners are working to have a ToR in place. “President Ali was quoted as saying that “They are now working with each other, talking with each other, crystallising the Terms of Reference. The Terms of Reference have to be in keeping with all the other things that is (sic) happening around the issues surrounding the elections.”
To be clear, these reports and quoted statements of President Ali were made two months prior to the official appointment of Commissioners that was announced in the Official (Extraordinary) Gazette of September 13, 2022, and also two months prior to the publication of the Terms of Reference of the CoI in the local media. None of these reports or statements has so far been corrected by anyone in the government. I want to emphasise my point of view that this is a most unusual procedure, and one which resulted in my letter of September 17.
The Commissions of Inquiry Act, Chapter 19:03 of the Laws of Guyana, says that:
2. (1) The President may issue a commission appointing one or more commissioners and authorising such commissioner or commissioners to inquire into any matter in which an inquiry would, in the opinion of the President, be for the public welfare.
(2) Every such Commission shall specify the subject, nature and extent of the inquiry…
The news report of July 17 raises serious questions about the propriety of having Commissioners (named but not yet formally appointed) work out their own Terms of Reference (in effect, participating in the drafting of their job descriptions), and ahead of the time when it was convenient for the Government of Guyana to publish the Terms of Reference in the Official Gazette. Not only will they not necessarily know enough about the background and context for the inquiry, there is also the risk, if they are well informed of the matters to be investigated, of whether they can properly be treated as newcomers to the information without pre-knowledge or bias.
I held and still hold that we still do not know if we need to know where the ToR, now published, originated, and that what we have is a possible conflict with the law. I stand by my description of this as a constitutional irregularity.
The author of the letter to the Guyana Chronicle was quite correct in noting that my letter raised several other concerns with the CoI. I may have more comments to follow.
Yours faithfully,
Eusi Kwayana
