I have asked you to come this afternoon in wake of a meeting this morning with the Diplomatic Corps to emphasise Government’s commitment to upholding the Constitution; respecting the institutions of the State – including the National Assembly and the Courts; to ensuring the rule of law; to safeguarding human and civil rights; and to preserving our democracy especially through the conduct of free, fair and credible Local and General and Regional Elections.
My friends, recent political developments have been subject to some misinterpretation and misrepresentation of Government’s intentions and they need to be clarified and explained.
The legal process
The Government, since the passage of the no-confidence motion in the National Assembly on 21st December 2018, sought to respect the decisions of the Court. We have upheld the Constitution.
We challenged the validity of the no-confidence Motion. We defended the challenge to the constitutionality of the appointment the Chairman of the Elections Commission.
The legal processes which we initiated were neither frivolous nor calculated to delay the consequences of the no-confidence vote. They sought to explain more clearly and to interpret certain provisions of the Constitution. The legal challenges were taken to the Supreme Court, then to the Court of Appeal and, finally, to the Caribbean Court of Justice (CCJ), our final court.
The Supreme Court of Judicature
The Government, through the Attorney General and Minister of Legal Affairs, filed a Fixed Date Application on 7th January 2019, challenging the passage of the no-confidence motion on the basis that the Opposition did not secure a majority as required by the Constitution.
The Attorney General, by way of the application, asked the Court to determine whether the Speaker’s declaration that the no-confidence motion was carried by a majority in the National Assembly was unlawful, null and void on the basis that it contradicted the Constitution (at Article 106 (6). The Chief Justice (Ag) on 31st January 2019 ruled that the no-confidence motion was lawful.
The Chief Justice ruled, also, that on the issue of dual citizenship, the vote of the former Government Member of Parliament who had voted in favour of the Opposition motion was valid although, as a person holding dual citizenship, he was occupying a seat in the National Assembly in contravention of the Constitution of Guyana.
The Court of Appeal
My friends, ladies and gentlemen, the Government filed an appeal on 5th February 2019 challenging the Chief Justice’s ruling. The Court of Appeal, on 22nd March 2019, by a majority ruled that the no-confidence motion against the Government was invalid. The Court of Appeal ruled, additionally, that a person holding dual citizenship was not entitled to be a member of the National Assembly.
My Government, in accordance with the Court’s ruling, replaced four of its ministers of the Cabinet who held dual citizenship on 25th April 2019 in pursuant of the Court’s ruling. It was very painful but we obeyed the Court.
The Caribbean Court of Justice
The Parliamentary Opposition filed an appeal on 27th March, 2019 asking the Caribbean Court of Justice (CCJ) to issue an order to direct that General and Regional Elections be held in the shortest possible time if the Court found that the no-confidence motion was validly passed. The CCJ, on 18th June 2019, declared that the no-confidence motion in the Government was valid and, on 12th July 2019, issued its Consequential Orders.
The Court declared that the provisions of the Constitution (at Articles 106 (6) and (7)), applied to a no-confidence motion and that the Government Member of Parliament who voted to support the Opposition motion was ‘ineligible’ to be elected to the Assembly by virtue of his citizenship of another State and that his vote on the motion of no-confidence was valid.
The Caribbean Court of Justice has made no coercive orders. The Government is therefore not in contravention of the Orders of the Court or of the Constitution. The Court declared inter alia on 12th July:
“Article 106 of the Constitution invests in the President and the National Assembly and implicitly in the Elections Commission responsibilities that impact on the precise timing of the elections which must be held. It would not therefore be right for the Court by the issuance of coercive orders or detailed directives to presume to instruct these bodies on how they must act and therefore pre-empt the performance by them of their constitutional responsibilities. It is therefore not, for example, the role of the Court to establish a date on or by which the elections must be held or to lay down timelines and deadlines which in principle are the preserve of political actors guided by constitutional imperatives.”
These are the words of Justice Adrian Saunders, President of the Caribbean Court of Justice. So, there is no date issued by the CCJ, there are no timelines, there are no deadlines.
The electoral process
The President of the CCJ declared inter alia that the process applied to appoint the Chairman of the Elections Commission (GECOM) was flawed, void and in breach of the Constitution. I, in accordance with the Court’s ruling, accepted the resignation of the Chairman. I then embarked on a process to engage the Leader of the Opposition to select a new Chairman.
The Constitution (at Article 161 (1)) states:
“…the Chairman of the Elections Commission shall be a person who holds or who has held the office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation with the nongovernmental political parties represented in the National Assembly.”
The CCJ, in its ruling of 18th June 2019, proposed, however, that:
“… before a list is submitted, the Leader of the Opposition and the President must communicate with each other in good faith on, and perhaps even meet to discuss, eligible candidates for the position of Chairman. The aim of these discussions must be to agree the names of six persons who fit the stated eligibility requirements and who are not unacceptable to the President…”
My friends, I have acted in good faith. I met the Leader of the Opposition twice since the CCJ issued its rulings, first on 2019.07.04 and, again, on 2019.07.16 and I will meet him again and again until a Chairman is appointed. The Government and Opposition appointed two teams to continue the process of identifying nominees for the position of Chairman of the Elections Commission. These teams met four times between 2019.07.08 and 2019.07.17.
The CCJ’s ruling, of 2019.06.18, also stated:
“Once the President and the Leader of the Opposition have hammered out a list of names not unacceptable to the President, the list, comprising the six persons, must then formally be submitted to the President by the Leader of the Opposition and the President must then select the Chairman from among those names.”
The CCJ emphasized that this approach “gives the President a role in the identification of the six names…” The CCJ has interpreted the provisions of the Constitution as ascribing a role for the President in identifying persons for consideration as Chairman. In other words, the President is not a passive bystander to the process. He is an active participant in ‘hammering out’ the list of persons ‘not unacceptable’ to him.
Ladies and gentlemen, I had the reasonable expectation that the Government’s recommendations would have been accorded serious consideration during the consensual process. I have advised the Leader of the Opposition that any list emerging out of a process which does not accord serious consideration to the Government’s recommendations, in the spirit of the CCJ ruling, would be spurious and that I would have great difficulty in accepting such a list.
Ladies and gentlemen, your government is committed to complying with the Orders of the Courts. We are resolved to ensure the expeditious appointment of a Chairman of the Elections Commission. We are committed to having fair, free and credible elections as early as possible. The Elections Commission, at present however, is without a quorum owing to the absence of a Chairman. My Government will continue to act in good faith to ensure that a Chairman, “not unacceptable” to the President, is appointed so as to ensure that democratic elections as early as possible.
Free, fair and credible elections are essential to representative democracy but can be assured only if certain minimum conditions are met. These include:
– an independent and functional Elections Commission;
– an acceptable and credible Official List of Electors; and
– an efficient and competent secretariat to manage these elections in accordance with the Constitution.
No other agency or organ of the State has responsibility for elections; only the Elections Commission.
The independence of the Elections Commission is safeguarded by the Constitution. It is insulated from political influence, instruction and interference. The President cannot influence, the President cannot instruct, the President cannot interfere, the President cannot tell the Elections Commission when elections must be held neither can the Courts. The Constitution (at Article 62) charges the Commission with the conduct of elections:
“Elections shall be independently supervised by the Election[s] Commission in accordance with the provisions of article 162.”
The Constitution (at Article 162 (1)) states:
“The Elections Commission shall have such functions connected with or relating to the administration of electors or the conduct of elections as are conferred upon it by or under this Consitution or, subject thereto, any Act of Parliament; and, subject to the provisions of this Constitution, the Commission –
(a) shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and
(b) shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.
(2) Notwithstanding anything to the contrary in the Constitution, if the Elections Commission is satisfied that the holding of an election pursuant to the provisions of paragraph (2) of article 60 or article 160(2) on the day appointed therefor would be attended, either generally or in a particular area, by danger or serious hardship it may, after consultation with the Prime Minister and the Leader of the Opposition by notice published in the Gazette –
(a) postpone the holding of the election to a day specified in the notice; or
(b) postpone the voting in any area specified in the notice to a day so specified.”
The Elections Commission has total control over the elections process.
Ladies and gentlemen, the credibility of elections is dependent, in part, on the integrity of the Official List of Electors. A corrupted or contaminated List can undermine the electoral process, encourage mischief and malpractice and result in the elections being vitiated.
The proclamation of an unrealistic date for elections or the adoption of an unacceptable list of electors will impair the credibility of elections. A new List needs to be constituted and it has been recommended that this should be done through a process of ‘house-to-house’ registration.
This is entirely a matter for the Elections Commission, it is not a matter for any political party or the Executive. The Commission must decide.
House-to-house registration is an efficient and credible process. The Elections Commission, in 2018, had requested funding for its planned ‘house-to-house’ registration upon the expected expiration of then existing ‘List’ the validity of which came to an end on 2019.04.30. So, the Elections Commission was ahead of the game and requested financing from the Government. The National Assembly approved prior to the expiration of the list a sum of $5.371 B in November 2018, before the No-Confidence Motion for House-to-House and after the vote of no-confidence approved an additional $3.482 B in May this year. So, in all, the Elections Commission has been provided with over G$8.538B. The Government has not withheld financing from the Elections Commission to do its work.
Ladies and gentlemen, elections will not be practicable unless the Elections Commission is prepared. It is for the Elections Commission to advise the President on its readiness to conduct free, fair and credible elections. It would be reckless and irresponsible, on my part, to name a date for elections without the Commission’s assurance and advice that it would be ready to conduct elections on such a date.
My Government is keen to have elections in the shortest possible time. It has to be satisfied, however, that the bases for the holding of free, fair and credible elections exist. We will continue, in the interim, to uphold the Constitution, to comply with the Orders of the Court and act in good faith in the consensual process to appoint a Chairman of the Elections Commission.
The political process
Ladies and gentlemen, I wish to advise that, in the wake of the passage of the no-confidence motion in December 2018 and, following the CCJ ruling and orders in June and July 2019, I have taken the several actions:
– meeting the Leader of the Opposition in January 2019;
– meeting the Elections Commission in March 2019;
– accepting the resignation of four Cabinet ministers on 25th April 2019;
– making three ‘broadcasts to the nation’ on 18th June and on 9th and 12th July on the acceptance by the Government of the CCJ’s ruling and Consequential Orders;
– accepting the resignation of the Chairman of the Elections Commission, on 25th June;
– meeting the Leader of the Opposition on 4th and 16th July;
– establishing a joint Government-Opposition ‘working group’ which has already met four times.
– presenting our case to the Commonwealth SG twice, by telephone.
– presenting our case to the CARICOM Chairman, by telephone.
– meeting the diplomatic corps in Georgetown on 25th July.
There has been strong resistance by the Opposition to the Elections Commission’s work plan to correct the list of electors which has expired using the process of house-to-house registration which is their right to do. There has been resistance by the Opposition to adopting the procedure for the selection of the Chairman of the Elections Commission by a ‘consensual’ rather than ‘unilateral’ process.
I assure you that I shall remain engaged in working towards ensuring that the Elections Commission receives the support it requires to conduct credible elections in the shortest possible time.
The Government of Guyana accepts that it is an ‘interim’ government and must continue to provide public services. The Constitution (at Article 106 (7)) states that, notwithstanding its defeat in the National Assembly, the Government shall remain in office and shall hold an election. The Government has made it clear that during this ‘interim’ period, it will restrain the exercise of its legal authority and prepare for the holding of General and Regional Elections by the Elections Commission.
The Government will continue only its routine management of the country; it will address urgent issues that are in the public interest but will not initiate projects which are controversial or which are irreversible. It will be prepared, also, to continue to consult with the Opposition on matters which require the agreement of both sides. It will not produce a new budget and it will not engage in actions which do not meet the criteria laid down for an interim administration.
Ladies and gentlemen, the processes which have led us to this present juncture may seem to have been protracted but it is the Government’s view that they were necessary to ensure the functioning of the Constitution “…the preservation of justice and the peace and prosperity of Guyana.”
I believe that we have taken action which has fortified democracy. The holding of free, fair and credible elections as soon as possible will make our democracy stronger.