Minister of Public Security, Khemraj Ramjattan
June 14 2020
…does the recount affect this Article 177
By Khemraj Ramjattan
ARTICLE 177 of the Constitution makes provision for the election of a President of Guyana. The marginal note so indicates. The relevant provision, namely, article 177 (1) and (2) says the following:
(1) Any list of candidates for an election held pursuant to the provisions of article 60 (2) shall designate not more than one of those candidates as a Presidential candidate. An elector voting at such an election in favour of such a last shall be deemed to be voting in favour of the Presidential candidate named in the list.
(2) Where – (a) there is only one Presidential candidate at the election; or (b) there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.
This provision is making clear a number of things or phases, one of which is that the same vehicle which is utilized for election of Parliamentary seats in the National Assembly is the same vehicle which will allow for the election of the President.
Another thing it is saying is that when there are contesting candidates for the Presidency, as we have had in the March 2nd Elections, the candidate with the higher votes is deemed elected. “Deemed elected”, it must be said, is not the same as “elected”, although on the rarest of occasions this is to be contemplated. This Recount provides that occasion.
To reach that “elected” state even a further phase has to be completed, namely, that a declaration to this effect must be made by the Chairman of the Commission acting on the advice of the Chief Elections Officer which advice has to be submitted to the members of the Commission at a duly summoned meeting.
There are some points which ought to be noted here. The Chairman is required to act on the advice of the Chief Elections Officer after this advice is tendered at a duly summoned meeting of the Commission. The Chairman declares the President elected on the advice of the Chief Elections Officer. Not on the advice of the Commission!
Of course there is another phase we all know which the duly elected President must pass; and, that is the swearing in by the Chancellor (or a Judge appointed by him), in accordance with article 97.
For all intent and purpose, the “deemed President” is only completely morphed into being the “elected” President when the latter things happen in accordance with article 177. There is no automaticity from a “deemed President” to an “elected President”. This is made even clearer by a reading of article 91 of the Constitution which says: “The President shall be elected by the people in the manner prescribed by article 177.”
These two articles 91 and 177 dealing with the election of the President and especially the words….“elected by the people”…. here must be via a process that is fair and credible. Gaining the higher number of votes cast by a process that is not fair or credible could never have been within the contemplation of the framers of the Constitution. Nor could it be the character and quality intended by these words….“elected by the people”.
Further, “credible” certainly must be the dominant, underlying consideration in the mind of the members of the Elections Commission, especially the all important Chairman, when conducting this exercise of a general elections, to realise the “elected President” of a democratic country. The very wide powers given by the Constitution to the Elections Commission in articles 62 and 162, and the various derivative legislation thereunder, makes this presumptive.
It was obviously under these constitutional powers that Order No. 60 of 2020 was approved, thereby occasioning a Recount; and, to avoid what allegedly was a process which had questionable credibility. It was with the purpose of having a final ‘credible’ count of the March 2nd Elections, (see para 14 of Order as amended).
So this now is the submission. If it was felt necessary, by what happened outside the ballot boxes, to go inside them to ensure credibility before a declaration as to the Presidency, then to have found so much that was repulsive and repugnant inside them must be given similar consideration, before a declaration. If having given consideration to what was found inside, namely so much taint and tarnish, then such will only result in a declaration that is not credible or fair. That being so then no declaration ought to be made but a vitiation of the process. That does not require another Order. All the findings as adumbrated by the Statement of Recounts concerning anamolies, irregularities, and statutory violations, absent documents etc, meant that there was not that “impartiality, fairness and compliance with the provisions of the Constitution or of any Act of Parliament” by the persons performing functions as contemplated in article 162 (1) (b).
Just assume for one moment, (and this is solely for emphasizing the point), that the boxes at the Recount had nothing in them, but the votes of the PPP, would article 177 apply? Could a Chairman proceed with a declaration of a President in that circumstance? No! He or she would have had to vitiate the entire process by announcing that a declaration cannot be made. Not credible would have been a euphemism in that scenario. And that being so, the only answer would have been: “As Chairman I cannot declare a President in these circumstances. As a consequence, there must be fresh elections…..”. Though this be an extreme example, it certainly makes the point that a declaration of a President by the Chairman of the Commission is not mandatory, nor necessarily have to follow at all, by any reading or construing of the prose of article 177. Absolutely not!
The example here means then that the Chairman is not tied by article 177 into automatically making a declaration of a President simply because there is evidence on a Recount that shows a contestant with the higher number. It does not follow. That would have only followed if the process resulting in that higher number count was credible.
It therefore means that by virtue of the broad functions and powers bestowed on it by the Constitution, GECOM’s Chair can call it as she sees it.
Further, it is submitted that no authority with powers to call a winner is without the power to not call a winner, and in that sense call off the race. That power is inherent. If the race is so badly conducted or corrupted, it could and should be called off. One ought not to go on to name a winner in those circumstances.
In an electoral race where so much is at stake and political stability is an overall consideration, how could it be fair or credible when so many statutory breaches and non-compliance of laws and regulations and Manuals and even worse, like the dead and non-residents voting, could a winner be declared?
It is my opinion that since no declaration was made of a President in accordance with article 177 prior to the Recount, (consequent upon a quest for credibility in the Elections of March 2nd 2020), then there is no reason why after the Recount if one is left with considerable credibility issues still, albeit of a new and different strand, why such a non-declaration of a President cannot be maintained. Article 177 perforce cannot compel in these circumstances GECOM’s Chairman to proceed with a declaration of a President in such tattered and tainted circumstances.
