The Guyana Elections Commission (GECOM) has no authority to remove anyone from the list of candidates on the basis that the person is a dual citizen. While it is illegal for a dual citizen to appear on a List of Candidates for election to the National Assembly, any such disqualification has to be done through a legal challenge.
GECOM has the authority to deem a list defective, if it is not supported by the requisite number of signatories or does not meet the geographic and gender requirements for contesting the elections or if a candidate’s name appears on more than one list. GECOM is required to send the defective lists back to the parties for correction, having pointed out the defects.
The issue of the eligibility of a candidate to contest an election requires judicial review. As such, GECOM has no authority to disqualify a dual citizen from contesting the elections.
The Public Relations Officer (PRO) of the Guyana Elections Commission was quoted in the media on January 8, 2020, as saying that GECOM has no legal obligation to verify candidates’ eligibility. She was reported as saying that the onus was on the political parties and the candidates to determine the honesty of the declarations which each candidate has to make.
Candidates for elections are required to sign a statutory declaration (Form 3). Their signature on the declaration indicates that they have consented to be on the list of candidates and that they are aware of the articles 153 and 55 of the Constitution which deals with qualifications and disqualifications as members of the National Assembly.
The Declaration does not specifically require the candidates to swear that they are not dual citizens, just to state that they are aware of the relevant provisions of the Constitution which address eligibility.
GECOM’s role is not to determine the eligibility of any candidate to become a member of the National Assembly. This power resides exclusively with the High Court. Article 163(1) vests in the High Court “exclusive jurisdiction to determine any question regarding the qualification of any person to be elected as a member of the National Assembly.”
This point was upheld by the CCJ in its decision of June 12, 2019 in the constitutional challenge to the legality of the vote of Charrandass Persaud. The CCJ affirmed that such a challenge has to be done by petition and within 28 days after the results of the elections.
The CCJ also observed that the court cannot take it upon itself, in violation of the Validity of Elections Rules, to enlarge its jurisdiction to disqualify a member of the Assembly because the member was aware, on Nomination Day, that he or she was disqualified, but nevertheless consented to have his or her name placed on the List.
The CCJ stated that if parliament desires the court to have such an enlarged jurisdiction, then parliament must so specifically provide.
Parliament has not so provided. Neither has parliament altered the Statutory Declaration which is required to be signed by candidates. That declaration, as mentioned above, also requires candidates to swear to the truthfulness that they were aware of the Constitutional provisions dealing with the eligibility for membership of the National Assembly.
The Declaration, which is part of the Representation of the People Act, should have been amended to explicitly state that the declarant does not hold allegiance to any foreign power (that is, he or she is not a dual citizen).
No such changes were made to the declaration, because both the PPPC and APNU+AFC are not opposed to dual citizens in the National Assembly. They knew all along that there were dual citizens sitting amidst their ranks. They never challenged each other’s dual citizens.
In its desperation to stay in power, the government decided to challenge the lawfulness of Persaud’s membership of the National Assembly. It paid a huge price, with four government Ministers being forced to resign after the Court ruled that the dual citizens were not eligible to be either members of the National Assembly or Ministers.
But this does change the fact that any disqualification has to be made by the High Court and via an election petition made within 28 days of the results of an election. GECOM therefore cannot disqualify anyone from the list on the basis that the person is a dual citizen.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper)
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