Constitutional reform: step one

Constitutional reform moved a stage further with the passing of the Constitutional Reform Act last November, and all stakeholders should grasp the opportunity to place Guyana on the trajectory towards becoming an acceptable liberal democratic country in time for the next general and regional elections.

It should be noted that as a first step the enactment or radical reform of a constitution should be ‘characterized by the need for a ‘pre-constitutional’ societal consensus regarding the foundational norms that underpin the state. Such consensus bestows the constitution with legitimacy in the eyes of the governed’ (https://seclpp.wordpress.com/2019/10/30/incrementalist-constitution-making-and-its-suitability-to-india/).

The present constitution is the outcome of a consensus that resulted from the 1997/78 Herdmanston Accord and the St. Lucia Statement that were signed by the then president, Ms. Janet Jagan and then leader of the opposition, Desmond Hoyte. The latter were products of the ethnic political disturbances that occurred in the aftermath of the 1997 elections and among other things, these agreements called for the establishment a Constitutional Reform Commission with a wide mandate and a broad-based membership drawn from representatives of political parties, the labour movement, religious organizations, the private sector, youth and other social partners.

The reform process was to be completed within eighteen months and it led to the national elections of 2021 that did not quell the political disquiet. Reporting on those elections, the Carter Center identified the most fundamental problem of Guyana’s political reality. ‘While credible and accurate elections are essential to democratization, it is clear that in Guyana’s winner-take-all” political system with its recurring patterns of ethnic voting and political polarization, elections alone will not produce an inclusive system of governance with broad participation by all major groups.’ (https://www.cartercenter. org/documents/1036.pdf).

This negative dichotomous reality is even more palpable today where almost every serious analysis of the political/economy of Guyana references the problematic nature of its ethnic divide.  Speaking to the political environment during the Coalition government in 2019, I wrote ‘It is not important how and why it originated, but for decades on one issue there has been near unanimity: Indians do not want to be ruled by Africans and vice versa! Therefore, the question for us is, who rules? If you have a practical answer to this question then you will put an end to all the abnormal constitutional and other political maneuvers!’ (SN: 13/03/2019).

The point about inclusivity made by the Carter Center and my conclusion above are substantiated  by the manner in which, after two decades of political instability, the Indian-supported PPP has interpreted the Herdmanston mandate and without consultations passed a law that, while mirroring what has gone before, gives it overwhelming control of the reform process. ‘The Commission membership is comprised as follows: 5 – PPP/C; 4 – APNU+AFC; 1 each representing the following: LJP-ANUG-TNM; Guyana Bar Association; Labour Movement; National Toshaos’ Council; private sector; women’s’ organisations; youth organisations: Christian organisations; Muslim organisations; Hindu organisations; farmers. Indeed, while the previous law stated that ‘When the Commission first meets, and before it proceeds to dispatch any other business, it shall elect one of its members to be the Chairman and another to be the Vice-Chairman,’ the PPP has sought to further strengthen its hand. According to the 2022 laws ‘The President shall, acting in accordance with his own or her own deliberate judgment, appoint the Chairperson of the Commission!’

Any attempt at constitutional reform will be futile if it does not adequately account for the ethnic divide. The Herdmanston Accord stated that ‘Among the matters to be addressed … will be measures and arrangements for the improvement of race relations in Guyana, including the contribution which equal opportunities legislation and concepts drawn from the CARICOM Charter of Civil Society can contribute to the cause of justice, equity, and progress in Guyana.’ But almost out of the block, the Carter Center recognised the main problem with the constitutional outcome of that process and for two decades we have lived with its results and it has not been good!  Notions that the 2001 constitution did not work because it was not allowed to work are misplaced.

In keeping with international norms, well expressed in the St. Lucia Statement and Herdmanston Accord, constitutional reform should be a consensual process that makes Guyana’s ethnic division its focus. For this to be so, time has indicated that Desmond Hoyte’s approach and important institutions that resulted therefrom are inadequate. For example, the Reform Commission it recommended, like the present one, while suitable for a homogeneous society is inappropriate for an ethnically divided society. That is why we and say with a high degree of certainty that the current formulation will favour the PPP.

With this as a backdrop, and to be somewhat more specific, the following preconditions should also be accepted by the major, but preferably all, stakeholders. The new constitution should at the very least:

Be fully compatible with international standards of human rights, democracy and international law.

Provide effective constitutional guarantees and appropriate mechanisms to ensure the implementation of human rights for all citizens and ethnicities.

Contain commitments to democracy, transparency and nonviolence.

Promote effective mechanisms to strengthen the ability of the security forces to enforce the rule of law and to fight organized crime and terrorism.

Safeguard the internal stability and territorial integrity of Guyana.

Facilitate the development of a multi ethnic, security,  police and judiciary

Provide mechanisms to ensure the participation of all ethnicities in government, both on the central and on the local level.

Establish effective structures of local self-government through the decentralization process that ensure equitable and improved access to public services.

Ensure that Guyana can develop in a sustainable manner and can cooperate effectively with international political, financial and other organisations.
Strongly entrench an inclusive and timely constitutional reform process.

The above list has been gleamed from what has taken place in Guyana and other countries and repetitions are intended for emphasis. Let us hope that the reformed constitution will release Guyana from the stranglehold of disunity, insecurity and chronic suboptimality.