DPP appears to be in Contravention of Article 187 (4) and Article 163 (1) of the Constitution

It is my strong view that the Director of Public Prosecutions (DPP) is in Contravention of Article 187 paragraph (4) and Article 163 of the Constitution, in relation to the conduct of criminal investigations into staff from the Guyana Elections Commission (GECOM), relative to the March 2020 General and Regional Elections. Article 187 of the Guyana Constitution under ‘Functions of the Director of Public Prosecutions’ gives the DPP the power to institute and undertake criminal proceedings against any person before any court, however, 187 paragraph (1) states as follows: ‘The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so – (a) to institute and undertake criminal proceedings against any person before any court, other than a court–martial, in respect of any offence against the law of Guyana’; (b) ‘to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and’ (c) ‘to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or her or any other person or authority’. Article 187 paragraph (3) states: ‘The powers conferred upon the Director by sub-paragraphs (b) and (c) of paragraph (1) shall be vested in him or her to the exclusion of any other person or authority’. Article 187 paragraph (4) states that ‘In the exercise of the powers conferred upon him or her by this article the Director shall not be subject to the direction or control of any other person or authority’.

One of the strengths and benefits of a democratic system of governance, is the separation of powers between the three Arms of Government – The Legislature, Executive and Judiciary. Douglas North and Barry Weingast in an article on ‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in 17th Century England’; held the view that rule of law would be enhanced by economic development. In the article, the authors noted that ‘for economic growth to occur the sovereign or government must not merely establish the relevant set of rights but must make a credible commitment to them’. Further, it was argued that the ruler or government, can show the commitment required in two ways; through what is described as ‘responsible behaviour’; and being constrained to ‘obey’ a set of rules that do not provide the scope for not fulfilling commitments. In this context, the authors stated that neither ‘responsible behaviour’ nor ‘obedience’ to the rules happens naturally.

It is on this note that I write this letter, bearing in mind that ‘responsible behaviour’ and ‘obedience’ to the laws, does not come naturally, even by those in authority; as such, our society has a responsibility to demand and insist that the Rule of Law is adhered to, that there is equality in the administration of justice; and that the law is not used to discriminate against any particular group in the society; that the law does not become a tool for oppression; and most importantly, that the administrators of justice, are not influenced by any authority in the course of their decision-making and in the administration of justice. I am of the strong view that the DPP is in contravention of Article 187 (4) of the Guyana Constitution and there appears to be influences by other persons and authority with regards to the approach to the criminal charges and investigations against the Chief Elections Officer, the Deputy Chief Elections, and other staff members from the Guyana Elections Commission (GECOM).

Additionally, Article 163 (1) clearly states that ‘Subject to the provisions of this article the High Court shall have ‘exclusive’ jurisdiction to determine any question – regarding the qualification of any person to be elected as a member of the National Assembly’. Recently, we have seen deliberate and unprecedented interference in the administration of justice, and the twisting and bending of the laws, depending on which political side is being represented, at a particular point. On a general note, what is happening in the criminal justice system currently, is setting a dangerous precedent, since governments do change. I therefore call on the DPP to immediately withdraw the charges and investigations against officials and personnel from the Guyana Elections Commission (GECOM), and to comply with the Guyana Constitution; since according to Article 163, only the High Court has jurisdiction over electoral matters; which is with good reason, and the High Court has not determined that fraud was committed. The DPP does not make laws, the DPP implement them! However, if GECOM concludes that administrative procedures were breached, then GECOM can proceed to take administrative actions.