The GECOM Chairman decision
Chief Justice (acting) Roxane George’s decision on Friday upholding what is now the unfettered discretion by President Granger in deciding who should be Chairman of the Guyana Elections Commission is the most retrograde development in the arena of electoral laws and reforms since 1991.
In the aftermath of decades of rigged elections under PNC governance, the Carter-Price formula for selecting the Chairman of an expanded elections commission was carefully crafted to ensure that both the governing and opposition constituencies would repose confidence in the candidate selected to run the electoral system. This formula was agreed to by both the PNC and the PPP and other opposition parties which had an input at the time.
The process worked efficiently for the selection of four chairmen who served for nearly three decades in total: Rudy Collins, Edward Garnett Hopkinson, Doodnauth Singh and Dr Steve Surujbally. From the single list submitted on all four occasions of names not unacceptable to the President, a candidate was chosen by Presidents Hoyte, Cheddi Jagan and Jagdeo. While it is true that the Carter-Price formula had only been intended as a transitionary arrangement for the 1992 elections, the political gridlock and the lack of will conspired to prevent the depoliticising of the process for the selection of the Chairman and a new methodology.
Nonetheless, the process worked smoothly and even if the candidate selected never always enjoyed the confidence of both sides in the electoral season, the Carter-Price formula delivered and importantly both the government and the opposition found common cause in it and it helped to normalise political conduct and relations during this period.
That, of course, was until President Granger was handed his first list of candidates by Opposition Leader Jagdeo in December of 2016. With perfectly suitable candidates on that list of six names, President Granger hemmed and hawed and eventually rejected the entire list. It is a matter of conjecture as to what should have happened at this point as really only one list was contemplated by the constitutional provisions. Should the list have been amended by redactions and substitutions? Or should Mr Jagdeo have gone straight to court for a ruling?
All of that is now academic as Mr Jagdeo submitted a second list which was also rejected. A third list was submitted and President Granger again found spurious grounds to reject it whereupon he then hurriedly made a unilateral declaration of retired justice James Patterson as chairman of GECOM. President Granger acted capriciously and arbitrarily in discarding three lists of 18 names of prominent Guyanese of whom a number would have been eminently suited to the post of Chairman of GECOM.
While he could have reasonably argued that none of three lists was perfect and contained names that were not acceptable, nothing prevented him from choosing a suitable candidate. In his canning of the lists, President Granger ripped up a tightly constructed framework for engendering confidence in the electoral system between the two main constituencies in the country, a development that is insalubrious given the country’s toxic electoral history. For the first time since 1991, the Chairman of the all-important elections commission has been chosen by the governing side with the opposition being completely left out of having a say even though the Opposition Leader fully participated in the process and entered the names of 18 persons after broad consultations. The unilateral selection of the chairman further sets back any hopes of immediately improved relations between the government and the opposition. Further, the President raised questions about his own motives when he appointed Justice Patterson to the post, a candidate who would not have ordinarily appeared to have been suited to the task.
In the overturning of the Carter-Price formula, some analysts have also discerned a longstanding antipathy within the hardliners of the PNC/PNCR towards the Hoyte electoral reforms beginning in 1990 which led to the party losing office until it was returned 23 later within a coalition featuring the Alliance for Change.
Justice George’s exegesis as delivered on Friday is unbalanced and should be tested at the earliest opportunity. The judge has found nothing within the provisions of the constitution on the appointment of a GECOM Chairman that constrains the conduct of the President. This is quite extraordinary. The judge’s acceptance of President Granger’s recourse to the proviso of Article 161 (2) to enable him make a unilateral appointment of Chairman is unconvincing. The Opposition Leader had supplied three lists of nominees and was prepared to continue discussions on a candidate when the President abruptly terminated the process in an act of bad faith. The proviso to article 161 (2) could only properly be seen as applicable when no list has been supplied and President has no other option.
While his predecessors may have readily seen loopholes to do what exactly was done in this case, they acted in a manner to ensure national cohesion and political amity. President Granger has acted contrary to this.