Election Legislation Reform

A letter from prominent citizens in Stabroek News last Friday called for consultation on electoral reforms. But drafting of the bill may have already commenced requiring the publication of the SOPs by GECOM immediately upon receipt and the creation of appropriate offences with severe penalties for election staff who violate election rules.

The recent elections have exposed many flaws in our elections system. The most significant was bound to emerge at some time. I pointed it out in an article more than ten years ago and was taken to severe task for my pains.

GECOM has a constitutional responsibility for preparing the voters’ list and conducting the elections. The constitution gives the right to vote to all Guyanese over 18 years of age, providing no residence qualifications. The logical conclusion is that Guyanese residing overseas have a right to be registered to vote.

The voters’ list is extracted from the national registration list, both of which GECOM is responsible for creating. But by law (the National Registration Act) the national registration list can only consist of Guyanese resident in Guyana. This means that when the voters’ list is extracted from the national registration list, Guyanese residing overseas are unlawfully excluded from it.

This was the dilemma that faced the Chief Justice in the case of Ram v AG. The Chief Justice was not asked to rule on the unconstitutionality of the voters’ list but on the legality of deletion of names from the list of those persons who are not found at the addresses on the list. The Chief Justice found that such deletions were unlawful because she clearly understood that a voter’s address is not a disqualification from voting.

There are only two ways of resolving this dilemma, namely, amending the constitution by providing a resident requirement or voting, or facilitating the registration of Guyanese residing overseas so as to enable them to vote if they wish to do so. Both of these would be highly controversial. A third choice is leaving it to fester for another generation, amidst allegations of ‘bloated’ lists.

As we are at it, the opportunity can be taken now to modify our electoral system by adding a geographical element, as the 2000 Report of the Constitution Reform Commission unanimously proposed and as the National Assembly unanimously accepted. The constitution already provides for a mixed electoral system whereby half the seats can be elected by first past the post. All that is required for implementation is for the National Assembly to amend the Representation of the People Act to demarcate the 33 constituencies and provide the necessary supplementary rules. For the last elections under first past the post in 1961, there were 32 constituencies. Therefore, there should be little difficulty in demarcating 33 boundaries.

The horrifying and brazen spectacle of the Returning Officer blatantly defying the law and announcing election results from a document other than the SOPs, then when required by a court decision to follow the law, displays the results of the SOPs on a dirty bedsheet from which the figures were illegible enough to be manipulated, without legal penalty, defied comprehension. The Chief Election Officer announcing election results that had nothing to do with the official results complied from the SOPs and later, SORs, and doing so on a purported power that he alone has the right to declare results based on any calculation from any source that he chooses, without any form of direct criminal sanction, has to be one of the most bizarre and extraordinary displays in Guyana’s electoral history. The High Court has clearly ruled that the Chief Election Officer is not a “lone ranger.” The further definition of strict responsibilities, devoid of vagueness or the possibility of misinterpretation, with severe penalties for violation, will meet with no public opposition.

There are many other less vital amendments to the Representation of the People Act that are required. It provides for the Elections Commission should be “permanent.” This was not always so and no office (or very few) carries life time tenure. Prior to the 1992 elections, the tenure of an Election Commissioner ended with elections. After 1992, under foreign pressure, the Commis-sion was unwisely made “permanent” by an amendment to the Representation of the People Act on the fiction that it would be independent. Experience has shown otherwise. It is time to revert to the original term of office and providing for the re-appointment of Commissioners.

The time at which a person becomes a Member of Parliament has been distorted by recent court decisions which suggest that after elections, persons on Lists of Candidates become MPs. This means that immediately after the elections, depending on how many Lists there are, there can be hundreds of MPs, most of whom presumably fall away when 65 MPs are officially chosen. Prior to these cases the 65 persons were acknowledged by all to become MPs when their names are extracted from the Lists and sent to the Chief Election officer. This confusion should be clarified by officially designating a person an MP when he or she is sworn in.

A valid vote should be defined as one counted by a presiding officer which can only be invalidated by an election petition process.