2020 elections litigation: UWI lecturers question independence of Guyana’s Court of Appeal

…say many “questionable” judgements were “corrected” by CCJ
…lauds Justice Roxane George for “sound judgements”

The overturning of several Guyana Court of Appeal rulings related to the March 2020 elections, and the 2018 No-Confidence Motion by the Caribbean Court of Justice (CCJ) has been noted by two University of the West Indies (UWI) lecturers and has caused them to question not only the soundness of the court’s judgments but also the independence of that court.

Lecturer in Law, Dr Ronnie Yearwood and Senior Lecturer in Political Science Cynthia Barrow-Giles – who led the high-level Caricom team to supervise the recount of all ballots cast at the March 2020 elections – on Thursday discussed their research paper titled: “The Judiciary and the 2020 Guyana Elections”.

The paper which is part of the UWI’s Faculty of Law, Cave Hill Campus Working Paper Series will be published soon in the Journal of Eastern Caribbean Studies.
The paper, among other things, examined the extent to which it can be argued that the March 2020 elections in Guyana signals the increasing significance of the Judiciary in elections. Barrow-Giles described those elections, which were marred by litigations from the two major political parties, as one of the most globally delayed elections in terms of declaring a winner.

Questionable, corrected
Examining the rulings handed down by the courts, Dr Yearwood, a qualified lawyer in Barbados, England and Wales, and the British Virgin Islands, said that many judgements rendered by the Court of Appeal were “corrected” by the CCJ. He reasoned that it seems often that the High Court and the CCJ were on similar wavelengths and similar thoughts and reasoning.
“It was often the Court of Appeal where the judgement seems to go awry and then the CCJ correcting the Court of Appeal to say actually what the High Court originally ruled as the exclusive court to deal with electoral matters was right, so we often saw that happen,” he noted.
Barrow-Giles said in light of what the Court of Appeal had to say on the same matters that were addressed by Chief Justice Roxane George – whom she described as highly respected – in her view, “some of the judgments that came out of the Court of Appeal are highly questionable”.
The lecturers lauded Justice George for delivering sound judgements in the election-related litigations, and in so doing, pointed out that many of her rulings were upheld by the apex court.

While noting that she is not a lawyer and did not want to impute anyone, the senior lecturer opined that there might be a connection between the appointment process of the Judges and some of the judgments. The Court of Appeal is presided over by the Chancellor of the Judiciary, while the High Court is led by the Chief Justice.
The Constitution instructs that the Chancellor of the Judiciary and the Chief Justice are appointed after the President and Opposition Leader reach an agreement. The other Judges are appointed by the Judicial Service Commission (JSC).
To this end, she underscored the need to examine the appointment process and to ensure there is a complete separation of powers in the region. The latter, she said, is one of the issues that clearly “comes out in some of the things that we saw coming out of the Guyanese courts in particular”.
When it comes to some of the decisions rendered by Guyana’s courts, in particular, the Court of Appeal, Barrow-Giles said that the most important point is the question as to whether or not the courts are truly as independent as they really ought to be, what can be done about that, and whether or not the judgements are also a reflection of the lack of independence of the courts.

GECOM a political party
Barrow-Giles explained that Guyana’s Constitution, unlike other Constitutions she is familiar with has given the Guyana Elections Commission (GECOM) tremendous powers – those we do not see associated with other elections bodies.
Despite this, she pointed out that GECOM was unable to use this power to assert itself in the controversial 2020 national elections. “GECOM should have an overriding role to play in the developments that took place, but unfortunately, for a number of reasons, it was side-lined.”

The political science lecturer, therefore, urged Guyana to rethink the way in which GECOM is presently constructed because the election body has not served the country well at all.
“GECOM is really a political party. In the context of the problems that Guyana has been experiencing over the years, I don’t think that it serves the purpose of Guyana. Ideally, I would like to see an administration, a GECOM, an organisation which is very independent…which is as powerful as it is. To my mind, [GECOM] is one of the world’s most empowered organisations.”
According to her, the problem with GECOM is the method of selection that the political parties want. In light of this, she added, “GECOM is there to serve the purpose of the two dominant political parties and it will always lead to a situation where unfortunately who ever becomes the Chair of GECOM will always find themselves in a very difficult situation.”
As such, Barrow-Giles who has participated in a number of election monitoring and expert groups argued that one of the first things that need to be done in terms of constitutional reform in Guyana is examining the way GECOM is composed.
Both lecturers expressed concerns over the manner in which political parties deliberately resorted to the courts to fight for political power. Barrow-Giles pointed out that there was clearly some malfeasance taking place on elections night as the problem emerged with the counting of the votes which led to the electoral process becoming very compromised.

Real heroes
Although the courts are often seen in a negative way as trying to encroach the space of democracy, Dr Yearwood said in many ways the courts in the March 2020 elections were the real heroes because they managed what could have been blown up into a very horrible and tricky situation.
According to him, the High Court and the CCJ should be given points for the way they manoeuvred the electoral process with intelligence and reasoning.
He added that older, more established courts have struggled in this regard. “And here you have a young Caribbean Court of Justice and a young Guyanese court system really manoeuvring and managing complex questions about due process, the validity of votes, recounting…” (Feona Morrison)