In September I had written to the Chairperson of GECOM drawing her attention to section 108 of the Representation of the People Act dealing with the Election Expenses Report. The section requires the election agent of each group of candidates to submit that Report within 35 days of the declaration of the results of the elections. Following a reminder to the Chairperson, I received a response from her informing me that “the Commission has advised [her] that although cognisant of the law, those sections were never operationalised”.
Such a response would generally be considered less than acceptable under any other circumstance. But for a retired Justice of the Court of Appeal to admit a conscious and deliberate violation of a key element of an election law by the body constitutionally responsible for the lawful conduct of elections is beyond shock.
GECOM comprises three members from the Government side, three from the Opposition and of course the Chairperson. For the six, there is not even a pretense of constitutional duty, independence or service to country. Even more troubling is the condonation of this violation by the Chairperson, or successive chairpersons of the Commission. Individually and collectively they are guilty of gross dereliction of their duty and the undermining of the rule of law and democracy in the country. It may not have started under Justice Claudette Singh but she is now admitting culpability by endorsing the violation.
The Election Expenses Report is the flip side of campaign financing regulation which is anathema to all our political parties which have created for themselves an unregulated and lawless environment. Of course, the APNU+AFC Coalition threatened democracy not only for five months but since the December 21, 2018 No Confidence Motion. It seems perfectly legitimate for the electors and the public to question their leadership’s fitness for any public office in this country. Unfortunately, there is nothing to suggest that the ledership of the PPP/C is innocent with respect to the “non-operationalisation” of section 108, violating the rule of law, making a mockery of accountability, opening the door to corruption and undermining the country’s democracy.
Elections are a necessary ingredient of democracy but unless political parties are held accountable and subject to the law as everyone else is, democracy will be no more than an aspiration. The consequences of the effective rejection of the No Confidence Motion and the attempted steal of the March 2 elections did enormous damage to the country that was only partially resolved on August 2 when under pressure from the US (of all places!) Granger finally conceded. For the 2020 elections, political parties took money from any quarter, and no one – not even their members and supporters – dare ask of them any questions. GECOM however has the power and the duty to demand answers and compliance with the law.
The collective refusal of the two major parties to comply with the law tells the ordinary persons that whatever the antipathy between them, the parties will not hesitate to conspire to undermine democracy, subvert the Constitution and set aside the rule of law when it is in their joint interest. They did it with crossing-the-floor legislation, the dual citizenship issue, resisting individuals being candidates in elections, and the law on election expenses – all done in the glare of publicity.
One hopes that the parties will not be so brazen as to attempt to justify their non-compliance with excuses that expenditure ceilings are too low. They could lawfully and democratically amend the law and increase the ceiling to whatever number they choose. But that would still require them to be accountable. So they took the easy, unlawful route of making GECOM their convenient utensil knowing that the defenders of democracy, the private sector and civil society are at best too timid to challenge them, or worse, willing participants.
Calls for constitutional and electoral reform may sound exciting and do deserve attention. But such calls would be far more convincing if the callers would also demand that politicians and political parties do the most basic thing in any country – demand that those entrusted to enforce the laws do their work and that there is compliance with the laws by political parties. That will be a first and necessary step. The second and more fundamental is that political parties have to be brought under some regulatory framework. We can no longer tolerate such lawlessness.