Constitutional reform

On February 8th, the Office of the Prime Minister announced the arrival of a team of constitutional experts from the United Nations System for what was described as a constitutional reform needs assessment mission.

According to a release from the Prime Minister’s office, the Terms of Reference (ToR) concluded between the Government of Guyana, the United Nations Development Programme and the United Nations Department of Political Affairs are as follows:

(i) Assess the political environment in Guyana and the legal and institutional framework governing the constitutional reform process; (ii) review past reform processes; (iii) evaluate the interest, capacity and roles of the various civil and political stakeholders in engaging in the constitutional reform process; and (iv) assess the potential role of UNDP-UNDPA in assisting this process and resources required.

There are two things that should be said from the outset. It appears that the government unilaterally decided to approach the UN for a constitutional reform mission. It no doubt has the authority to commission such a visit but there should have been prior discussion with stakeholders here about the objectives of such a mission considering the imperative to engender confidence and trust in charter reform from the inception. There is no evidence thus far of any type of discussion with the opposition PPP/C about constitutional reform.

Secondly, the ToR do not disclose anything of value or interest to the Guyanese public. They appear to be sloppily cobbled together to provide some explanation for the inviting of a mission. Guyanese are clearly aware of their political environment and the framework governing constitutional reform. Going all the way back to the infamous ‘riggerendum’ in 1978 and the imposition of the Burnham constitution on the nation, the public has been acutely aware of the political context. If by this time we don’t know the legal and institutional framework governing constitutional reform then we are really in serious trouble. Further, why are experts who may have only a slight awareness of our constitutional history being tasked with reviewing past reform processes. Aren’t we at least capable of that ourselves? Even more galling is the assignment to examine the interest, capacity and roles of the stakeholders in engaging with the reform process. The experts were to also assess a potential role for the UN in the process and the resources required. Why is this necessary? Surely we are capable of demarcating the reforms necessary and this process can be steered by our own human resource base and with our own funds.

While the country welcomes missions which

are imbued with the intent of entrenching constitutional principles, the sanctity of the separation of powers and respect for the rule of law, this mission from the UN reads like an extreme delaying tactic employed by the APNU+AFC government. The UN System must be aware that it shouldn’t unwittingly become the conduit for what now appears to be a reluctance by the government to proceed with constitution reform as had originally been planned. Hopefully, these UN experts would have gleaned enough from their visit here to enable the swift movement of the reform process.

After all, it was not that long ago (1999 to 2000) that Prime Minister Nagamootoo among dozens of others played crucial roles in significant reforms to the 1980 constitution. There is therefore institutional knowledge and memory in terms of what was accomplished, what was disregarded as too politically divisive and what was impossible to achieve a viable consensus over. There definitely exists a starting point for this process, there was no need for a UN mission to divine this.

Head of the 1999 to 2000 Constitution Reform Commission, Ralph Ramkarran in describing the process in August 2015 wrote “The Commission received some 4,000 submissions and travelled throughout Guyana taking evidence. Several overseas experts also gave evidence.”

This process was very involved, bipartisan and drew a significant number of persons from civil society as commissioners. A critical mass of persons who were involved are still here and the possible pathways to reforms exist. There just needs to be an engagement at the level of Parliament to begin the process. Thereafter it will be readily evident if APNU+AFC and the PPP/C are prepared to grasp the nettle of presidential powers and shared governance among other areas.

The problem for the APNU+AFC administration is that it has egregiously breached a solemn promise to the nation to speedily institute constitutional reforms. Its manifesto said in no uncertain terms that within three months of taking office it would appoint a Commission to amend the Constitution with the full participation of the people, which among other things, will reduce the powers of the president. This, of course, has not happened in 20 months and the government has laid an unclear path.

It appointed the Steering Committee on Constitutional Reform (SCCR) in September 2015 which the public assumed would have done the work that the UN team purportedly now has to do. The government has not even advised the public about the outcome of its own deliberations on the SCCR report which was submitted to it on April 30, 2016, 10 months ago. It has only said that a Constitutional Reform Consultative Commission Bill has been drafted and is now the subject of further Cabinet deliberations.

There seems to be no urgency by the government in taking the constitutional reform process forward. Given the deep political, ethnic and other divisions in the country, the constant watch needed on the preservation of fundamental rights and ongoing concerns about constitutional office holders, the government will be in gross dereliction of its duty to the people if it seeks to evade meaningful reforms to the constitution before the 2020 general elections.