The Chief Justice (ag) of Guyana, Roxane George-Wiltshire, must be commended on the decision handed down on March 11, 2020: (1) she treated the matter with the urgency that it deserved; (2) she delivered a clear judgment in a timely manner; and (3) she made the court process truly public. She took the opportunity to school the public at large, which is of critical importance in today’s context. It was a landmark decision in many ways, reaffirming and clarifying earlier principles enumerated by the Courts of Guyana.
Nearing the end of her decision, the Chief Justice (ag) stated “…. that it was saddening that nineteen years after a similar case, she had to restate the words of the then Chief Justice, Desiree Bernard, that the role of GECOM is to take action to ensure impartiality, fairness and compliance with the law. Every effort must be made to ensure that everyone is satisfied that the process is fair.” Her lamentation could clearly be felt. It is depressing, sad and disappointing as it demonstrated a lack of growth by all concerned in the span of almost two decades.
I was disappointed that the learned CJ (ag) did not shun the hesitations of history and use her moral authority to speak to constitutional office holders about the probity of their conduct. This is particularly in view of the history of electoral fraud in Guyana, the (mis)conduct of electoral officials, and the subversion of the process designed to instill confidence in the electorate.
While rendering her decision, the Chief Justice (ag) made some comments regarding the conduct of parties and assignment of blame. This was at the very end, and while it did not form part of her judgment, it was instructive in more ways than one. It is here that I unfortunately have to vigorously disagree with the learned jurist. At this time in our history, we must not hesitate to call out constitutionally inappropriate actions. There were many on the part of GECOM.
The Chief Justice (ag) failed to specifically acknowledge the conduct of GECOM’s staff in compromising the very impartiality, fairness and probity that she laments. This failure was a missed opportunity to hammer home the importance of impartial and ethical conduct. It was an opportune time to remind everyone at GECOM of their role as custodians of the democratic process for all Guyanese.
This should also have been a teaching moment – about the impeccable conduct required of constitutional office holders such as the Chairwoman, the CEO, deputy CEO, and senior staff of the secretariat. While it is up to these individuals to not only listen, but to also hear, it was imperative that it was spelt out in unambiguous terms.
Nothing occurs in a vacuum. Given the Chief Justice’s (ag) comments, it is clear that she is aware of the narratives surrounding this matter. In her oral reasons, the Chief Justice (ag) underscored the exclusive control over the process afforded to GECOM by law, particularly the powers enjoyed by the Returning Officer (RO). Surely the irony of the situation was not lost on the learned jurist given that it was the RO’s actions that were inimical to the health, transparency, credibility and efficacy of the democratic process. This is why the case was before the Court.
In my estimation, any delay in the electoral process opens the door for mischief. It is incontrovertible that an intentional delay was introduced by Mr. Mingo (RO – District 4) and his enablers. The sequence of events from the close of poll on March 2, 2020 to the final declaration of Region 4 votes was an obscene and vulgar display of constitutional impropriety. The world witnessed the spectacle of GECOM office holders shirking their responsibility to ensure, nay protect, the transparency, credibility and accountability of the electoral process.
This was intentional incompetence at its best and structured subversion at its worse. Any reasonable person watching what transpired would have to conclude that something was amiss at GECOM. It all started with Mr. Mingo’s declaration of tiredness on election night (understandable), to his sudden illness (somewhat suspect) and subsequent hospitalization the next day, which was followed by the CEO’s inability to find Deputy Returning Officers (DROs; there are some 80 of them in region 4 alone), to spreadsheet gate, to flash-drive gate, to the constant stopping and starting because GECOM’s staff were tired, hungry, needed a break….and a sundry list of other excuses. Then finally, everyone at GECOM went missing. All constitutional office holders were inaccessible to all except the police and members of the Government. Not even court marshals were able to serve legal documents. This demonstrated a level of impunity that must be called out. Given the importance of this exercise, and the abundance of DROs available, it is impossible to credibly explain why this process was conducted in such a haphazard manner.
This is why I find myself departing from the Chief Justice (ag) with respect to assignment of blame. I expected the Chief Justice (ag) to use her moral authority to remind GECOM of its commitment to the people of Guyana – that it was willing and capable of conducting free, fair, credible and impartial elections. Even if we were to accept that the political parties’ conduct fell short of what was expected, this does not explain the morally suspect actions exhibited the leadership of GECOM, particularly its Chairperson, CEO, deputy CEO, and RO for District 4. The lower level staff only took their cue from management.
GECOM had a constitutional and moral commitment to ensure the mandate of the people is preserved. Its conduct demonstrates intentional subversion and a hidden hand. Most, if not all are complicit, whether directly or by willful blindness. I expected the CJ (ag) to have reflected stronger on the conduct of GECOM. Her hesitation and equivocation were Guyana’s loss
Unfortunately, another 19 years will elapse and we will continue to lament missed opportunities. The learned CJ (ag) could not overcome the hesitations of the legacy of Guyana’s electoral history.