Constitutional reform: electoral change

Given our highly politicized climate, this is only going to be seen as a tainted process. Our position is that all stakeholders should be involved from the inception of a reform process.

Whatever rules the government intends to establish to make the electoral process ‘stronger, more transparent, more accountable and to ensure that it is manned by persons of high integrity and professional ethics’, the above quote is the main reform recommendation of the Report of the Caricom Observer Team for the Recount of the Guyana March 02, 2020, Elections, and should be an important element of the perform process. The CARICOM process is usually flaunted by the government but in a letter ‘All stakeholders should be involved from inception of electoral reform process’ (SN: 18/01/2021), the Electoral Reform Group (ERG), a body of citizens recently formed to aid the reform process, drew attention to an interview Attorney General Mr. Anil Nandlall gave to Kaieteur Radio on 9th January 2021 during which he outlined a process that could easily lead to the exclusion of CARICOM’s ‘minimum condition of electoral reforms.’ The ERG rightly expressed concerns over the AG’s report that ‘a small unit has been tasked with compiling requisite pieces of legislation to be reviewed in consultation with relevant stakeholders who will work together to correct the loopholes’ in the electoral process.

The ERG had two major concerns. Firstly, the AG’s approach that concentrates upon establishing an electoral process that focuses upon fixing loopholes that arose during the 2020 elections was too limited. ‘While improved legislation could address some administrational concerns with GECOM (electoral lists, polling day procedures, tabulating the votes and reporting the results), our position is that, what the AG identified as an electoral reform process, does not go far enough, there are number of other long-standing problems with the electoral system which have been articulated and repeated by citizens, observers, both local and international. Such systemic weaknesses which have gone unaddressed for too long and are at the very root of the 2020 electoral crisis.’ Secondly, the group argued that ‘Given our highly politicized climate’, the AG’s ‘small unit tasked with compiling requisite pieces of legislation to be reviewed’ will be viewed as a tainted process and that ‘all stakeholders should be involved from the inception of a reform process.’

Maybe partly to take account of this criticism, it was good to hear from the AG that the process of constitutional reform will be completed by the end of the PPP/C government’s full term in office (SN: 24/01/2021). He claimed that since constitutional reform is by its very nature a bipartisan process, ‘in the sense that no singular party in the house has sufficient number of votes to effect any important reform, it is expected that [the] work programme – and the final outcome my additionwill be a largely consensual one.’ The constitutional reform process will not be a government dominated and driven process but ‘the committee will work tirelessly to ensure the changes proposed by the majority are made’.

International best practices against which these reform efforts are best judged supports the position of the ERG on the important issue of stakeholder participation. ‘The requirement of consensus does not need much explanation: the electoral system establishes the basic rules of the game in the political system and it must have stability, otherwise an acceptably effective Government will not be possible. Overall agreement must therefore exist among the main participants.’ It continues to say that: ‘Transparency is the result of an accumulation of factors, among others, the designation of the material creators of the rules to be applied, the way in which the work is done and whether the inevitable (and necessary, in the interests of consensus) contribution of the criteria of the basic political forces is opaque or out in the open. Clarity on the objectives is definitely a prerequisite for consensus’ https://aceproject.org/main/english /lf/lfe03.htm ).

Nowhere in the most recent article (SN: 24/01/2021) does the AG speak to electoral reform as an aspect of the constitutional reform process and thus it would not be unfair to conclude that by this response he is attempting to differentiate between constitutional and electoral reforms and is suggesting different approaches for the two processes. He also seems to be indicating that the former requires consensus largely because the government does not have the numbers to proceed without the parliamentary opposition, but where it has the numbers it could pass legislation as it more-or-less pleases. The AG did say that the draft legislation he proposes is to be reviewed by ‘relevant stakeholders’ but he must know that by interjecting prior regime concerns in the form of draft legislation he is prejudicing the entire consultation process in the government’s favour.

Apart from supporting the CARICOM position for a brand new electoral list that in my opinion should as far as possible be based upon the latest technology such as biometrics, a second issue of major concern has to do with the capacity of the elections management body to deal with complaints before, during and after elections day. During the 2020 elections the Guyana Elections Commission (GECOM) claimed it did not have the requisite authority and I did not accept its position. I argued and showed by way of international best practices that when article 177(2) of the Constitution states that, ‘if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President,’ it could not have intended the counting of illegal votes and that as such GECOM must have the capacity to deal with complaints of such illegalities if the elections process is to make sense. That is now water under the bridge but such explicit rules should be established. As was obvious during the last presidential elections, they exist in the United States and are also to be found in Westminstertype political systems.

‘As a minimum condition of electoral reforms the team recommends the urgent need for the total re-registration of all voters in Guyana’

For example, the Parliamentary and Presidential Elections Act 1993 of Malawi is comprehensive, allows for relatively timely decisions by the elections management body and the courts and contains such rules (file:///C:/Users/Owner/Downloads/ EL00752%20(2).pdf). Under the heading ‘Analysis of complaints, etc .. prior to determination of the national result, article 97 states that: ‘At the beginning of determining the national result of a general election, the Commission shall take a decision on any matter which has been a subject of a complaint and shall examine the votes which have been classified as null and void and may affirm or correct the determination thereof at the polling stations and at the offices of District Commissioners but without prejudice to the right of appeal’ to the High Court.’ Article 113 states, ‘Save as otherwise provided in this Act, any complaint submitted in writing alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided on by the Commission and where the irregularity is confirmed the Commission shall take necessary action to correct the irregularity and the effects thereof … An appeal shall lie to the High Court.’

I would find it incredible if any government, much less one that is in office with such a miniscule majority, could consider that it has the mandate to unilaterally change the system in any meaningful way without substantial consultation and consensus. Indeed, at the practical political level it is most unlikely that consensus will be reached on constitutional reforms if it is not with regard to important electoral changes, and the latter situation will most likely effectively put paid to the entire reform process with the entailing political consequences.