My understanding is that the Constitution of Guyana sets out the fundamental principles of our law and it is left to Parliament to enact legislation to provide the meat: to provide the step-by-step basis to effect the principles set out by the Constitution.
Unfortunately, and because it is written by humans, it could be confusing at times and so needs to be interpreted by the Court. Sometimes you hear of the letter of the Constitution as opposed to the spirit of the Constitution. Sometimes a particular article is extracted to ensure a particular outcome when other articles may qualify said article.
One of the problems is that the lay person may want to understand the Constitution in keeping with their own wishes; to fit what they want or simply swallow blindly what the leaders say. One of the issues in contention at this point in time is article 177 (1) which states, “A Presidential candidate shall be deemed to have been elected as President and shall be so declared by the Chairman of the elections Commission acting only on the advice of the CEO…”
The question to my mind is the word “advice”. Does this mean the CEO can give whatever advice he wishes; that he could present to the Commission any numbers, which he so desires? Recently, we have seen the CEO delivering more than one report each having different number of votes. So, which are the real numbers that the Commission can rely on to determine the elections? Organisations internationally and locally, except for the APNU+AFC, have reached consensus that the numbers coming out of the recount are what is acceptable.
Could the spirit of the Constitution have given to one person such unbridled powers to submit what he feels like and this has to be rubber stamped by the Commission no matter how outlandish or fraudulent his advice may be. If this is indeed so, it means that a single person, after all the monies spent, time consumed and the electorate would have voted could be a complete waste as the CEO can simply decide arbitrarily the outcome of the elections. I doubt very much if the framers intended this.
Recently the Appeal Court judgment stated that “more votes cast” means “more valid votes” cast as if the constitution could possibly have meant invalid votes that it had to be interpreted. In addition, the word valid is mentioned many times in Sections 84, 89 and others in the Representation of People Act. I come back to this issue not to ignore the settled CCJ decision on this, but precisely because we are being led to believe by the coalition that the Appeal Court judgment, invalidated by the CCJ, still applies.
Now it seems necessary to understand what the Constitution intended by the word “advice”. Lets examine the various legislations to see if they offer any clarification as to what is intended for the CEO to do. Section 89 of the Representation of the People Act says that from the votes tabulated for the ten regions, written statements of have to be prepared and submitted to the CEO.
Now Section 96 (1) of the said Act states, “The CEO shall, after calculating the total number of valid votes of electors which have been cast for each list of candidates, on the basis of the votes counted and information furnished by returning officers… ascertain the result of the elections” and according to 96 (2) “prepare a report both manually and electronically for the benefit of the Commission which shall be the basis for the Commission to declare”.
In my humble understanding, these sections clarify the advice the CEO is supposed to give to the Commission. It does not give the CEO any authority to determine or manipulate the numbers in any way. With regards to whether the CEO is his own independent boss and cannot be instructed by the Commission, this is what the “ELECTION LAWS (AMMENDMENT) No. 15 Section 18 states that, “The Chief Elections Officer and the Commissioner of Registration shall notwithstanding anything in any written law be subject to the direction and control of the Commission” It is clear here that he is to be guided, instructed by the Commission.
I looked at the Representation of the People Act Section 100 (1) which states “upon the conclusion of the final counting under Section 95, of the votes the Returning Officers in the presence… shall (a) seal in a separate package the counted and rejected votes”. Section (d) states, “prepare a written statement as to the result of the verification of ballot papers counted”. (f) states “deliver the results to the CEO a return in writing in respect of the final counting in form 24 which shall set out the number of (i) valid votes cast for each list of candidates.
Interestingly enough Section 100 (2) deals with the package that is to be put into the ballot boxes and this section states, “The Returning Officer shall not open the sealed packets containing tendered ballot papers, marked copies of the official list of electors or part thereof or counter foils of used ballot papers.”
I am thinking that the outcry of the missing documents is just hot air because in my opinion, it is not supposed to be open anyway. With reference to the advice, the CEO is to furnish the Commission, it may be important to examine order 60/2020, Section 9 of which states, “The tabulation of Statement of Recount… shall be input into a matrix … information from this tabulation should be broadcast periodically.”
Section 11 says that the signed Matrix produced shall be transmitted to the CEO with copies given to all including the Chair and made available to the public. Section 12 states, “the matrices for the ten (10) Electoral Districts shall then be tabulated by the CEO and shall be submitted in a report, together with a summary of the observation report for each district to the Commission”. It is important to note the use of the word “shall”.
Section 14 states, “The Commission after deliberating on the report at paragraph 11 (note not the report of the CEO but the matrices of the districts) shall determine whether it should request the CEO to use data compiled in accordance with paragraph 11 as the basis for submission of a report under Section 96 of The representation of Peoples Act Cap 1:03. Clearly, this states the power of the Commission over the CEO ad so the Commission can define exactly what advice the CEO is supposed to give. The CEO is a creature of the Commission.
Section 15 adds support and makes the powers of the Commission definitive without a doubt. It States, “For the avoidance of any doubt, the CEO and every person appointed or authorized to perform any act or function by virtue of this order, are and shall remain subject to the general supervisory power of the Commission.”
Now, in my , it is clear it is clear that the law does not give to the CEO powers to determine anything. His job is to tabulate and this tabulation is the advice he has to render to the Commission. It is clear that he is no law unto himself.