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‘GECOM: a conspiracy of inaction’
From moral, constitutional, legal and operational standpoints, the Guyana Elections Commission (GECOM) has to have and does have enormous authority to deal with its mandate. Yet, when required to make sensitive decisions that fundamentally affect the fate of the citizenry, it has reneged on its obligations on argumentation that can nowhere be sustained. Indeed, these apparent derelictions have benefitted the government faction of the Commission by allowing it to bypass GECOM’s inclusive decision-making structure and have led to the view that there is a conspiracy of inaction.
This conspiracy is said to have occurred during the 2020 elections, when GECOM was confronted by electoral irregularities that it deemed serious, and it has now occurred again when, in relation to an investigations of its own behaviour, it is claiming that an internal inquiry at this stage will affect matters before the courts, and is for the second time attempting to equate civil and judicial decision-making by claiming that it cannot act for it does not have the authority to cross-examine witnesses. Since GECOM is a party to the court actions, one must wonder how it intends to develop a comprehensive position to take before the courts and whether it does not leave open the possibility of those who feel excluded presenting their own memorandum: maybe as amicus curiae.
Given a resort to the courts by those who feel offended by its decisions, one would have expected a truly independent GECOM to have asserted its right to be the only institution that could morally and constitutionally examine electoral matters in Guyana. Instead, on the most flimsy argumentation it has reneged on this obligation and has facilitated the regime’s, autocratic appointment of a Commission under the Commission of Inquiry Act, Chapter 19:03.??
Article 62 of Guyana’s Constitution states that, ‘Elections shall be independently supervised by the Elections Commission in accordance with the provisions of article 162’ and the latter states that ‘(1) The Elections Commission shall have such functions connected with or relating to the registration of electors or the conduct of elections as are conferred upon it by or under this Constitution or, subject thereto, any Act of Parliament; and, subject to the provisions of this Constitution, the Commission: 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 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.’
International best practices state that, ‘While decisions on and conduct of prosecutions of voter fraud would generally, and more appropriately, be the responsibility of civil law enforcement authorities, the electoral management body requires systems in place to fulfill two specific responsibilities: * detect and document all attempted cases of voter fraud, so that suspected perpetrators may be identified and subject to the appropriate processes under electoral or other legislation and regulations; * determine, if at all possible before the finalization of counts and the announcement of election results, if the extent of any detected fraud regarding voting is sufficient to have a possible effect on the results of any election; * If the extent of fraud detected is sufficient to have possibly affected an election’s results, the electoral management body itself making application to the relevant judicial authorities that an election be set aside will aid in projecting the image of the electoral management authority’s vigilance, professionalism, and integrity in the face of attempts to manipulate election outcomes.’ (http://aceproject.org/ace-en/topics/vo/vog/vog05/vog05b/mobile_browsing/onePag).
The conspiracy of inaction gains credence for section 22 of the Election Laws (Amendment) Act 2000 gave GECOM the authority to do all of the above yet it has failed to act and thus is responsible for much of the system’s failures that took place in 2020. Section 22 states, ‘If any difficulty arises in connection with the application of this Act, the … Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.’ GECOM was aware of the existence of Section 22 as it used it to make possible the 2020 elections recount!
In the normal scheme of democratic politics, it would be absurd for any government, itself under suspicion, to establish a COI without some form of stakeholder participation. In an ethnically divided society such as Guyana, such an approach courts various levels of social dissension. However, while the PPP motive is quite understandable, the coincidence of interest with GECOM is worth noting. Given its authority, GECOM would most likely also be under investigation for its inaction that led to regime change in 2020 and thus, like the PPP, it fears an inquiry under its more inclusive organisational framework and seeks shelter under what it hopes will be a sympathetic unilaterally appointed COI.
However, the regime decision to have a body that is independent of the government, opposition and GECOM to enquire into the 2020 elections is not of itself a bad idea and I am not questioning the legal qualification or integrity of the personages chosen as commissioners. But people are open and unbiased within their given ideological framework: it is substantially for the latter that they are usually preferred or rejected and it is now universally understood in democratic countries that stakeholder – particularly opposition parties – consultation is a sine qua non for matters dealing with elections. So both principle and real politics suggest that stakeholders should refuse to participate in the COI until they have assured themselves that the commissioners, the terms of reference and other related matters are not biased against their interests.