It took longer than expected for the challenge to the jurisdiction of the Caribbean Court of Justice (CCJ) to materialise. In expressing support for electoral reform in an interview on May 14, Leader of the PNCR and former President David Granger said that the Guyana Court of Appeal, and not the CCJ, should rule on electoral matters. Describing the foreign influence to be ‘phenomenal,’ ‘relentless’ and ‘toxic, he said that the ‘very strong’ Court of Appeal was competent to rule on electoral matters inside Guyana. If Mr. Granger was referring to the CCJ as foreign, he is badly mistaken. It is as indigenous as cook-up and pepperpot.
The former President did not mention that the strength of the Court of Appeal was essentially three-fifths for his entire term of his office except for a six- month period when there were two acting Judges. The term of office of the Judicial Service Commission (JSC) expired in 2017, preventing their potential reappointment, and a JSC has never been reappointed, even unto now. The ‘very strong’ Court of Appeal had to elevate temporary Judges from the High Court on three different occasions to complement its panel to hear election matters. Of the four cases heard by the ‘strong’ Court of Appeal, two were successfully appealed to the CCJ. In one it was held that the majority of 65 is 33 and not 34, as decided by the Court of Appeal. In the other it was held that the Chief Election Officer was unlawfully invited by the Court of Appeal to engage in a validation exercise to determine ‘valid’ votes for which a procedure by way of election is laid down in the constitution and the validity of elections laws.
Politicians do not like independent courts. That was the reason for the abolition of the Privy Council and the establishment of the Court of Appeal as Guyana’s final court. Those who were around at the time in 1970 when appeals to the Privy Council were abolished will remember the great fears which were expressed at the potential subversion of Guyana’s judiciary by the PNC, particularly in view of the already rigged the 1968 elections. These fears were realized when, shortly after the Declaration of Sophia in 1974 announcing the paramountcy of the PNC over the institutions of State, the PNC flag was flown on the Court of Appeal building. Later, Justice of Appeal Victor Crane, in an address to the Bar Association, linked the necessity of the rule of law with the creation of the right environment for socialist orientation which was the dominant preoccupation of the then government. Guyanese watched helplessly for decades while the judiciary was subverted in numerous ways.
It took longer than expected for Guyana’s opposition politicians to express dissatisfaction with the CCJ. Within a day of the CCJ’s rejection of the attempt of the Barbados election authorities to rig the voters’ list by omitting Commonwealth citizens who were residing in Barbados for over one year, who were entitled under the Barbados constitution to vote, Prime Minister Freundel Stuart referred to the Judges of the CCJ as “politicians in robes.” He vowed to withdraw Barbados from the CCJ. Fortunately, Stuart lost the election, and his party was completely wiped out, not winning a single seat.
The rights of Guyanese voters would be in serious jeopardy if Mr. Granger’s withering criticism of foreign observation of our elections or withdrawal of elections’ issues from the CCJ are allowed to occur. Guyana has a very far way to go to ensure that elections will always be free and fair. Those with bad intent will eliminate the threat to electoral manipulation posed by foreign observation and the vigilance of the CCJ. The only certain way the electoral system can be protected is to enshrine foreign observation and the all-embracing, appellate, jurisdiction of the CCJ in the constitution, by way of referendum if necessary.
If the PPP does not take these steps, and it loses the next or any future elections, the abolition by the PNCR of foreign observation of elections and exclusion of electoral matters from the jurisdiction of the CCJ, the PPP can kiss goodbye to political office forever. It is only by happenstance, the end of the Cold War, that it got a lease of life in 1992. No event of a similar nature will occur again.
In reality, the only permanent elimination of electoral problems which have bedeviled our politics for generations is to have a political solution. But both political parties have felt so aggrieved at each other for so long that no such possibility is anywhere in sight. In the meantime, it is necessary to strengthen our democracy because our history has demonstrated that in conditions of authoritarian or undemocratic rule, no chance exists for a political solution because ruling authorities, with state power, are normally unwilling to cede even an iota of power. A political solution, or inclusive governance of such a substantive nature that it will eliminate feeling of exclusion and discrimination, can only materialize in conditions of stable democracy, Guyana’s democracy needs to be strengthened and preserved until the time when the momentum for a political solution once again emerges on the political agenda.