Disputes about elections are certainly not new to Guyana; and concomitantly, our laws and regulations have evolved painstakingly detailed rules to deal with almost any contingency. But laws and regulations assume that those affected by them will be persuaded that there will be sanctions if they are violated. The dilemma for a society that aspires to observing the rule of law begins when those appointed to enforce the law become complicit in breaking those laws. Who will guard the guardians?
One answer has been to create state institutions that are independent of the guardians, and which can act as checks and balances using powers clearly defined in the Constitution, the highest law in the land.
Today we have seen that David Granger, as President and head of a coalition in which his PNC is by far the largest component, has played fast and loose with the law – including the Constitution. He has had to be countermanded by the court at all its levels, including the Caribbean Court of Justice. But unfortunately, those reprimands have not dissuaded him from repeating his transgressions – mainly because, as president, he is above the law: a contradiction in the very nature of the “rule of law”.
At this moment, Guyana is poised on a knife’s edge. We can either fall back into the authoritarian dictatorship of the first iteration of the PNC, in which its then leader could openly rig elections for decades and then warn his political bete noir, Walter Rodney, to “make his will” and proceed to assassinate him. Or we can consolidate the democratic gains ushered in by the PPP, which stepped out of office when defeated at the polls, even when they charged that those polls were flawed. They adhered to the laws and regulations governing our electoral system; to wit, to file an election petition in the High Court to challenge the results declared by the Guyana Elections Commission (GECOM), the authoritative body for issuing such results.
In a democracy, every individual or political party has a right to a remedy for the violation of their electoral rights, and the state has instituted rules and institutions to secure those rights – namely, GECOM and the courts. However, there is always the possibility that the courts and the electoral bodies like GECOM might be used by plaintiffs in a practice called “forum shopping”, so as to gain an advantage for their cause.
Because of Guyana’s sordid history of elections-rigging by the PNC, our laws have made a clear demarcation of the respective jurisdictions of GECOM and the High Court. And it is this demarcation which the present PNC under David Granger is seeking to breach by their insistence that the Report of the CEO of GECOM on the results of the recount — illegally redolent with his opinions on the “credibility” of the elections based on mere assertions by PNC agents, most of which have since been rebuffed — be used by the Commission to declare the elections invalid. The question before us, therefore, is: Who has jurisdiction to pronounce on the results of elections in Guyana and claims about the validity of those elections? The law is clear: GECOM has the former function, while the High Court has the latter.
The Order for the recount, Officially Gazetted under 60/2020, is “subsidiary legislation”, and could not confer powers not granted to GECOM. It stated, “The matrices for the recount of the ten (10) Electoral Districts shall then be tabulated by the Chief Election Officer and be submitted in a report, together with a summary of the observation reports for each District, to the Commission on or before 13th day of June 2020.” It does not mention any evaluation of the objections raised by the PNC agents; that is a matter for the Courts.
Article 163 (1) (b) declares, “the High Court shall have exclusive jurisdiction to determine any question (b) whether – (i) either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission.” This was implemented by Chap 1:04 National Assembly (Validity of Elections Act) Sec 3.
