Convening of Parliament, filing of elections petition, and prosecution for alleged electoral malpractices
After 15 months, the National Assembly met last Tuesday for the first time under the new Administration. This delay was due mainly to the following:
(a) Legal challenge of the Speaker’s ruling that the 21 December 2018 vote of no confidence in the Government was validly carried. The matter went all the way to the Caribbean Court of Justice (CCJ) for its final determination;
(b) Undue delay in the appointment of the Chair of the Guyana Elections Commission (GECOM). As in the case of the no confidence vote, it took the intervention of the CCJ to resolve the matter;
(c) Claims of GECOM’s lack of readiness to hold elections despite the fact that it had successfully done so in November 2018 in respect of local government elections; and
(d) Controversy over the house- to- house registration of voters. Judicial review was sought that resulted in the exercise being brought to a premature end.
The Assembly did, however, meet in 2019 but only on four occasions, the last being on 23 May 2019. Following the dissolution of Parliament on 30 December 2019, elections were eventually held on 2 March 2020. However, it took five months for the results to be officially declared and for the new Government sworn in, due mainly to attempts to tamper with the results as well as legal challenges not only to stop the recount of the votes cast but also to prevent GECOM from declaring the results based on the recount.
We had emphasized the need to convene Parliament urgently to set the legislative agenda for the rest of the year, including the presentation and approval of the 2020 national budget. Tuesday’s meeting of the Assembly saw the election of the Speaker and Deputy Speaker. The latter was, however, not chosen from the main Opposition party but from the list joinder involving three smaller parties that were only able to secure one seat in the Assembly. In supporting the nomination of Mr. Lenox Shuman as Deputy Speaker in preference to the former Speaker, Mr. Raphael Trotman, the Government may have lost a golden opportunity to display magnanimity and to mend fences with the APNU+AFC following the series of unfortunate events that took place since the passing of no confidence vote.
The main Opposition party, for its part, did not act in the national interest when it staged a walk-out of the Assembly because of the election of Mr. Shuman. One hopes that this would not become a practice whenever there is a disagreement with the Government side of the House. Already, the party has lost out in terms of contributing to the approval of the budgetary allocations of
constitutional agencies for 2020. On Wednesday, the entire budget is expected to be presented to the Assembly.
Constitutional/legislative requirements for constitutional agencies
By Article 223A of the Constitution, in order to secure their independence, the expenditure of each of the constitutional agencies shall be a direct charge on the Consolidated Fund, meaning it is not voted on by the Assembly, as in the case of the budgets of Ministries, Departments and Regions. The amount involved is ‘determined as a lump sum by way of an annual subvention approved by the National Assembly after a review and approval of the entity’s annual budget as part of the process of the determination of the national budget’.
Article 223A goes on to state that each entity shall manage the subvention as it deems fit subject to conformity with financial practices and procedures approved by the Assembly to ensure accountability. All revenues are also required to be paid into the Consolidated Fund.
By Section 80B of the Fiscal Management and Accountability (Amendment) Act 2015, the budgetary proposals of the constitutional agencies are to be submitted prior to the commencement of the financial year to the Clerk of the Assembly who must ensure that the proposals are submitted to the Assembly as presented, except for the Audit Office whose proposals are presented to the Assembly via the Chairperson of the Public Accounts Committee (PAC). The Minister of Finance is required to submit his comments and any recommendations, limited to the overall proposals rather than individual items, in sufficient time to enable the Assembly to consider them.
Once approved by the Assembly, the allocations are included as subventions to constitutional agencies under the Estimates of Revenue and Expenditure. The approved annual budget of a constitutional agency shall not be altered without the prior approval of the Assembly. In addition, disbursements are to be made as a lump sum by the end of the month following the month in which the appropriation is approved, unlike budget agencies where disbursements are made monthly based on allotments approved by the Minister.
Section 80A requires the financial statements of all constitutional agencies to be prepared, duly audited by the Auditor General, and the related reports presented to the National Assembly within six months of the close of the fiscal year. These statements are to include a statement of assets and liabilities i.e. a balance sheet, and a statement of revenue and expenditure.
2020 budgetary allocations for constitutional agencies
Tuesday’s meeting of the Assembly also saw the approval of budgetary allocations for the 16 constitutional agencies in the sum of $11.3 billion without amendment. It is, however, not clear whether the amounts were arrived at after a review was carried out ‘as part of the process of the determination of the national budget’. In the previous four years, the Assembly had approved of lower sums based on recommendations from the Minister of Finance who had argued that consideration had to be taken of the ‘fiscal space’ and in particular the macroeconomic outlook, anticipated revenue and expenditure, growth, and national development priorities, among others.
The following table gives a breakdown of the $11.3 billion approved by the Assembly for constitutional agencies for 2020:
In terms of financial reporting and audit, while some agencies have made efforts to comply with the requirements of Section 80A, others have not, most notably being GECOM and the Supreme Court whose budgetary allocations for 2020 together account for $7.386 billion, or 65.4 percent of the total allocation for constitutional agencies. For 2015, GECOM was audited as if it was a budget agency but for subsequent years, there was no evidence of any further audit being undertaken, considering the vast sums of money it has expended since 2015.
It is also not clear whether the agencies audited and reported on, have presented their reports to the Assembly, and in a timely manner. However, the Order Paper for Wednesday’s sitting indicates that reports relating to Indigenous Peoples’ Commission, Office of the Ombudsman and the Public Service Appellate Tribunal, will be presented. This is an area to which the Assembly needs to pay particular attention since it is undesirable for the Legislature to approve vast sums of money for these agencies while at the same time overlooking the accountability arrangements to ensure that the funds have been properly expended in keeping with their constitutional mandates. The same can be said of statutory bodies, Neighbourhood Democratic Councils, Town Councils, public corporations and other entities in which controlling interest vests in the State. Parliamentary oversight via the PAC is also lacking since the related audit reports are not presented to it for examination. The PAC only focuses on Central Government activities and has been several years in arrears in terms of its examination of the public accounts, the last being in respect of 2014.
Filing of elections petition
Last Tuesday, the Opposition APNU+AFC filed an elections petition challenging the results of the 2 March 2020 general and regional elections. According to the documents filed, the APNU+AFC is contending that the declared results were not credible because of what it considered numerous irregularities uncovered during the recount, including voting by persons who were not in the country on Elections Day as well as voting by persons who have died prior to this date. Accordingly, it is requesting the court to determine, among others, whether the elections have been lawfully conducted or whether the results have been, or might have been affected by any unlawful act or omission, and whether the seats in the National Assembly have been lawfully allocated, as provided for under Article 163 of the Constitution.
None of these alleged irregularities were, however, uncovered on polling day where multiple layers of control were in place at each polling station to prevent voter fraud. Not to mention also was the presence of GECOM officials, political party representatives, and accredited local and international observer groups who have all been unanimous in high praise of the way the elections were conducted. No one made any allegations of voter irregularities while on the following day the GECOM Chair declared the elections free and fair.
Upon representation by the APNU+AFC to the Elections Commission, the Chair had made it clear that any allegation of voter irregularity must be dealt with by the elections court via an elections petition. The courts, including the CCJ, have also pronounced to this effect. In its ruling Ali & Jagdeo v Eslyn David, Chief Elections Officer & others, the CCJ commented as follows:
The jurisdiction conferred by Article 163 is capable of addressing the allegations of irregularities complained of by Mr Harmon and alluded to by the CEO. The Chairperson of GECOM was therefore perfectly entitled and right to take the position that these allegations, if pursued, should be addressed by an election petition filed in the High Court as contemplated by Article 163. Neither GECOM nor the Court of Appeal is entitled to trespass on the exclusive jurisdiction of the High Court in this regard. The Chairperson was also right to note that GECOM lacks the legislative authority and the machinery to adjudicate those irregularities.
It is not clear how soon the elections petition will be heard. The High Court is yet to deal with the 2015 elections petition filed by the PPP/C.
Prosecution for attempted tampering with the election results
Five GECOM officials and a former Minister are before the court for their role in the attempted tampering of the 2 March election results. The former Minister’s signature appeared in a falsified declaration that the District Four Returning Officer (RO) had made on 5 March. Last Tuesday, the RO appeared in court to answer four charges of misconduct in public office. The RO had abandoned using the Statements of Poll (SOPs) to tabulate the election results for that region and substituted a spreadsheet of unknown origin. This is contrary to Section 96 of the ROPA which required him to tabulate the results using the SOPs in the presence of all those who are entitled to be present, before publicly declaring the results. He also defied the Chief Justice’s ruling on the matter. In some cases, the figures he attempted to declare did not match those contained in the SOPs. Instead, he began to announce the results using the spreadsheet.
On 13 March, the RO declared the results for Region 4 showing that the APNU+AFC won with 136,057 votes, compared with the PPP/C’s 77,231. When the recount was carried out, the results showed that the APNU+AFC actually received 116,941 votes while the PPP/C received 80,920. The extent of the tampering was therefore 22,805 votes. With this declaration, the Chief Election Officer issued his report showing an APNU+AFC win with 236,990 votes against PPP/C 229,489.
If found guilty, the court should impose the stiffest penalties provided for under to law against the above persons to serve as a deterrent against any future attempts to thwart the will of the people and impose an illegitimate government. Never again should Guyana return to the dark period between 1968 and 1992 when authoritarianism prevailed through tampering with the electoral process.