There can be no Consensus on Judicial Appointments outside of Consensus on Power

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This past week, the president of the Guyana Bar Association captured the news-headlines with her observation that the system being used to appoint the Chief Justice and the Chancellor of the Judiciary is not working. If one had no knowledge of Guyana’s political reality, that declaration would seem quite straightforward–if a system is unworkable, then fix it and move on. The response of the Attorney General in which he agreed with the head of the Bar Association reflected that attitude. The problem is that both the AG and Ms. Chase live in Guyana and ought to be quite familiar with the Guyanese reality. That nether of them advanced an alternative speaks to either an unwillingness to think through the problem or an avoidance of the problem or both.
Anyone who is honest about Guyanese political reality would know that the problem lies not with the method used to appoint the heads of our judiciary, but with the very nature of our political being. But, given our collective penchant to avoid the so-called elephant in the room, we eventually substitute the symptoms of the problem with its essence.

It is well known that the method under scrutiny was part of a menu of constitutional reforms two decades ago that were aimed at forcing consensus in our national decision-making. In effect it was a attempt to bring the opposition into decision-making. These reforms included the opposition chairmanship of the parliamentary sectoral committees and the appointment of heads of all constitutional bodies.
While on the surface these attempts at inclusion appear reasonable, they in fact ended up compounding rather that solving the problem. It has proven impossible to have consensus between two political forces within the framework of a system of winner-takes-all. In other words, we are asking one side with no institutional power to arrive at consensus with another side that has all the institutional power. That is and has proven to be an invitation by the former to use the occasion as a veto on the power of the latter. And the logical extension is for the latter to retaliate by affirming its absolute institutional power. As Dr. Luncheon declared during the “dialogue” which emanated from the Herdmonston Accord two decades ago, it was an engagement between “unequals.”

The root cause of the problem is not the lack of consensus; that is the symptom of the problem. The root cause is our ethno-political reality in which our two major ethnic groups do not want to be governed by each other—a truism that has been demonstrated at every election since 1957. This reality is in tension with a governance framework that puts power in the hands of one group or the other via a winner-takes -all electoral system. It is therefore difficult, if not near impossible, to arrive at consensus on judicial appointments or on other aspects of the governance system outside of a consensus on the equitable distribution of executive power.

That we are having this discussion in 2022 is due in part to the hypocrisy of the two major political parties who only address the problem when in opposition, but once in power they warm to the status quo. In the case of the PPP, it has in the last two decades held to the status quo even when out of office largely because it believes that it is the pre-ordained ruler of the country. The other reason we are having this discussion in 2022 is due to the cowardice of our so-called Civil Society when it comes to issues of race. Civil Society in Guyana treat race and its outcomes as events rather than an institutionalized phenomenon. This leads us to condemn instances of racism or racial discrimination, but not to treat with the problem of race in our institutional arrangements.

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When faced two decades ago with a choice of instituting some form of ethno-racial political power sharing or tinkering with the system via “consensus”, our two major parties chose the latter. One strong argument against power sharing was that it would lead to gridlock. Ironically, the alternative chosen has led to the very gridlock they ran away from and to which the head of the Bar Association has alluded. One again we have come face to face with our historical demons. Whether it is the choice of GECOM Chair or the NRF Board or the Commissioner of Police or the Chancellor and Chief Justice or on issues such as electoral malpractice/integrity, a clean voters list or who gets what from our oil revenues, real consensus is not forthcoming unless there is consensus on ethno-political power distribution.



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