Electoral reform

Constitutional reform always has more appeal for a party when it is out of office than when it is in government. It was promised by APNU+AFC during its campaign prior to the 2015 election and despite setting up a Constitutional Reform Steering Committee which submitted a report of recommendations to then Prime Minister Moses Nagamootoo in 2016, nothing further was heard of it.

Similarly, the PPP/C gave everyone the impression before 1992 that amending the Constitution was high on its political agenda, but showed no enthusiasm for it when it eventually attained power. A reform process was inaugurated in 2000-01, but this came about as part of the Herdmanston Accord following the disturbances in the aftermath of the 1997 election. Those reforms were never carried to their logical conclusion, however, despite the fact that a mechanism for continuing the undertaking was put in place. This was the Constitutional Reform Committee of Parliament, a standing committee, which has produced no serious proposals in the intervening period, including from 2011-15 when APNU Leader David Granger chaired it.

Since the subject was once again on everyone’s lips in the run-up to the 2020 election, PPP/C Leader Bharrat Jagdeo indicated that his party would be prepared to entertain constitutional reform, and a commitment to that effect did find a niche in its manifesto. During the Budget debate in November last year, Attorney General Anil Nandlall assured the National Assembly that the government intended to keep its manifesto promise in this regard and would begin the process with discussions in the standing committee on constitutional reform. Significantly, he went on to say that the approach would be people-driven, not government-driven. “It will be government in partnership with the parliamentary opposition, in partnership with civil society in a multi-stakeholder drive and it will be driven by the people of this country who will be consulted nationally,” he was quoted as saying.

He had also told the assembled MPs that the reforms included legislative changes to the electoral process to make it “stronger, more transparent, more accountable and to ensure that it is manned by persons of high integrity and professional ethics, so as to prevent the electoral machinery from being hijacked by political fraudsters, who cannot win government through the will of the people.”

The AG became Chairman of the Constitutional Reform Committee in January of this year, and in February he exhorted its members to put aside their differences in order to arrive at “consensual” goals. The only item on the agenda at that stage was to agree on a work programme. There have been no reports on how the committee has progressed since then.

And now, almost a year after Mr Nandlall made his comments during the 2020 Budget debate, draft amendments to the Representation of the People Act have been published. If citizens expected a roar, what they got was a whimper. There were no fundamental reforms here; legislative changes to the electoral process not constitutional reform were where the government’s true interest lay. As it stands the provisions are directed simply at preventing a repeat of what happened last year when rogue elements within and without Gecom attempted to fraudulently alter the result. So after all this time and a great deal of fanfare, all the AG has come up with is the imposition of more severe penalties for elections offences and the introduction of some new ones which will attract particularly draconian sanctions, as well as subdividing Region Four and creating new offices in relation to it. This can all be done without any reference to the Constitution, because only statutory law is affected. The government therefore does not require the collaboration of the opposition, and can pass the amendments in Parliament by use of its own majority. The AG did throw a sop in the direction of consultation, saying that six weeks would be set aside for this purpose. He does not, however, seem to have put any special mechanisms in place to allow for direct engagement with the public at large, so one can only suppose it is left to individual citizens and groups to contact the AG’s office either in writing or by some other means, although he did invite Gecom to make submissions. In any event, the entire modus operandi is not suggestive of any intention to pay much attention to what the populace has to say, at least where the major elements in the draft are concerned.

The various civil society groups which have responded have all been of one voice in lamenting the failure to seize the opportunity to work on fundamental constitutional reform rather than be confined to this narrow technical approach which will do nothing to address the deep-rooted political problems of this society.

Perhaps Mr Nandlall would seek to argue that the government still intends to move ahead with the consultations on constitutional reform, but that the process would be a protracted one, and in the meantime the matter of preventing a repeat of the events of last year requires urgent attention. It doesn’t. In fact, as our leader of November 8 pointed out, by the time the draft moves to Parliament it might in any case be several months before it comes into effect, and this has important implications for the local government elections schedule. The administration will do nothing to burnish its democratic credentials if it continues to be as cavalier about local government polls as it was during its previous periods in office.

In addition, as was also noted in that editorial it is most unlikely there would be a repeat of the unbelievably crude rigging attempts of last year. That said, while it would not be possible for those bent on fraud to do a reprise of 2020’s shenanigans done in full view of any number of witnesses, heavy penalties will not be sufficient in all circumstances to prevent those who have it in mind to alter the outcome of an election from attempting to do so.

Then there are the penalties themselves. Civil society group Article 13 expressed concern that the sanctions, if they become law, might have “a chilling effect on the willingness of citizens to serve for a paltry sum as clerks on election day.” One might also remark that punishments should in general be proportionate to the crime, as well as being in synchronicity with the larger catalogue of penalties in our laws. As such, one has to wonder about life sentences for some kinds of electoral fraud in circumstances where so many men who murder their wives are not handed down life sentences.

One is reminded of the early 19th century in England where a slew of capital punishments for offences, some of them minor, were wiped off the statute books, not out of jurisprudential considerations, but because juries refused to convict defendants, even in cases where there was no doubt about guilt. One wonders therefore if a local jury would not hesitate to return a guilty verdict in a case involving a life sentence for fraud, albeit electoral fraud, even if the prosecution case appeared to be a good one.

Then there is the matter of the subdivision of Region Four, which will be perceived as targeting a predominantly opposition region. Former Attorney General Basil Williams gave the background to the creation of geographical constituencies in a letter to this newspaper and wrote that the hybrid system which was created thereby is incomplete. He said we had to return to the constitutional reform process in order to complete the hybrid system of geographical constituencies and top-up seats, but that the PPP/C did not want constitutional reform. He is no doubt correct about that, although it should be added that neither did the coalition government which he served when it was in office.

The various civil society groups, as well as Mr Ralph Ramkarran, a columnist in this newspaper, have laid emphasis on the necessity of reforming Gecom, which would involve constitutional change, as would the other electoral reforms which they have suggested. They maintain that the opportunity should not be lost to look at the underlying issues which have made our democratic system so dysfunctional. One would have to be an unreconstructed optimist, however, to believe the government would abandon its present course and strike out on a path to constitutional reform in its stead.

There is something else too. Several of the civil society groups think that the consultation period of six weeks should be extended to allow the public time to become familiar with the draft amendments. This is certainly something which recommends itself given that among other things we are so near to Christmas when there are any number of matters to distract the attention of the average citizen. This is surely something which the AG should grant.

Up to this point the government has not demonstrated a commitment to constitutional reform of any kind, the AG’s words in last November’s Budget notwithstanding. But the administration should note that we may be on the cusp of a different era, where it cannot control the narrative in quite the way it has done in the past. The issue of constitutional reform is not going to go away; there are a number of groups around now which will keep reminding the AG and the government as a whole that they need to act on it sooner rather than later.