Your Eyewitness wouldn’t be surprised if, dear reader, you’re feeling a tad giddy right now about that sore in our body politik – Mingogate, or the “how to try rigging an election using a soiled bedsheet”!! You’d heard the GECOM Chair explain why the Commission couldn’t REVIEW the 2020 debacle and suggested a court of law!!
But she didn’t realise there is ANOTHER vehicle, in ADDITION to the Courts, that is empowered to take evidence etc – A Commission of Enquiry!! This is a well-used institution that’s been passed down by the British whenever anything controversial happened in our country that the state had an interest in. And this is exactly what President Ali announced on Mingogate at the Enmore Martyrs ceremony:
“In honour of these martyrs and all Guyanese who fought relentlessly to ensure that our country did not go down as an undemocratic state…we will have an international CoI into the last elections. Not a review…we promise, particularly your President promise, a CoI, and I say to all of you: before dawn on Tuesday, your President will name the members of that CoI. And those who sought to subvert democracy…the CoI will set the truth from the untruth…”. And that truth will set some of us free, and others condemned to the opprobrium of the Guyanese people!!
Your Eyewitness gonna refer to a South African source to clear up the difference between CoIs and Court trials. “Unrealistic expectations about what commissions can achieve comes from the fact that they’re often confused with courts of law. This isn’t surprising, given that they seem to function like courts. For example, they’re often chaired by judges, affected parties are often represented by lawyers, and witnesses take oaths to tell the truth. But they aren’t courts. And it’s important to understand the difference between the two when it comes to their functions, powers, and procedures.
What are the differences? “A court judgment is binding and has direct legal effect on the parties involved. The court will determine that the accused goes to prison, for example, or that the defendant pays damages. The only way affected parties can escape the court order is by getting it overturned on appeal or review by a higher court.
“Commissions of inquiry, on the other hand, make non-binding recommendations to the person who set them up. (In this case, President Ali.) Technically, all commissions do is offer the person who set them up advice. And they’re required to stick to the issues on which advice was requested. These are set out in the terms of reference which establish what questions the commission must answer, who will head it up, and what its powers are.”
Pres Ali will establish these!
…and their work
“CoIs are completely different from courts when it comes to procedures, too. Courts are adversarial, and the judge sits as an outside observer while the two teams before her attempt to establish their version of events.
Commissions of inquiry, on the other hand, are inquisitorial. This makes the commission the driver of the investigation itself. It seeks out the facts, rather than waiting for two opposing parties to choose and present their evidence. In an inquisitorial process, the witnesses and their lawyers are merely assisting the commission’s investigation.
“An important consequence of the inquisitorial process is that a commission is not bound by the same rules of evidence as in a court. Thus evidence will never be ‘inadmissible’, as the commission enjoys discretion to consider all evidence that it finds relevant to its inquiry.”
So, what’s the end game? The rub will come when the President acts on the findings of the CoI. He can duck it, like Granger did with the Rodney CoI, but not do something completely different from the recommendations, like Granger and the Sugar Industry CoI.
The President and the CoI cannot be subject to review for “rationality”.
…and the public
But commissions have another, critical function – to educate the public on matters!! Like who’s behind Mingogate!!
