Kaieteur News – The Court of Appeal of Guyana in a unanimous judgment in February of 2020 affirmed a ruling by the Chief Justice that residency is not a qualification for voting. One of the Justices argued that a person cannot be removed from the National Register of Registrants unless they are certified as insane or has been convicted of an elections- related offence within five years prior to the qualifying date set.
As far as is known, the APNU+AFC never appealed this decision to the Caribbean Court of Justice. Until it is overturned by a higher Court, it stands as a precedent to inform the qualification for voting.
The unanimous ruling of the Court of Appeal is wholly consistent with the arguments which were adumbrated in a Peeping Tom column of February 12, 2010 which argued that the right to vote is dependent on the duty to be registered as an elector. It also addressed whether there is a Constitutional right of every citizen to vote and whether someone who resides outside of Guyana can challenge the legality of an election because of the denial of overseas voting.
Under the Constitution of Guyana there is no fundamental right to vote. The Constitution however provides at Article 59: Subject to the provisions of Article 159 (meaning the provisions of Article 59 must be read in conjunction with Article 159), every person may vote at an election if he or she is of the age of eighteen years or upwards and is either a citizen of Guyana or a Commonwealth citizen domiciled and resident in Guyana.
However this provision is conditioned by Article 159 which provides that no person shall vote unless he or she is registered as an elector. Thus while we may say there is a right of every Guyanese eighteen years or older to vote, there is equally a requirement of the Constitution itself, and not just of any law, that the person must be registered.
In the New National Party of South Africa vs. Government of South Africa it was held that the registration is a constitutional requirement of the right to vote and not a limitation of that right.
Thus if there is some Guyanese living overseas who wishes to vote at an election in pursuance of his or her “ right” which is said to be created by Article 59, that person must equally satisfy the eligibility of Article 159 and become registered.
The Constitution makes no compunction nor creates no implied compunction for the Guyana Elections Commission or the National Registration authorities to register overseas-based Guyanese. Neither does it any longer make provisions for overseas voting.
There is therefore no conflict between our election laws and the constitution. And thus it is hardly likely any non-resident Guyanese can successfully challenge the outcome of an election on the basis that no provision was made for overseas voting.
A certain Senior Counsel who was agitating for the right of overseas-based Guyanese to vote questioned the arguments presented in that column. He accused ‘Peeping Tom’ of suggesting that since our registration laws provide for only residents to register, then only residents can vote. This of course was a disingenuous interpretation of the original column. In response ‘Peeping Tom’ pointed out that this column had never made such an imputation.
What exists is not a constitutional right of every adult to vote but on a right to those who have been registered, regardless of residency. This ‘Peeping Tom’ pointed out was why the column had been titled, ‘The right to vote is determined by the duty to be registered.’
Just to extend the argument a little, let us suppose that someone resident in Guyana does not register to vote. Can that person then challenge the outcome of an election on the basis that his constitutional right as an adult citizen was violated? Which Court in light to Article 159 is going to rule that a person who has not taken the time to be registered can find a constitutional defence in Article 59 or in Article 159?
And it would be oppressive for the Guyana Elections Commission to have a constitutional obligation to register every adult Guyanese wherever he or she may be.
The Opposition now is raging against non-residents being on the Electoral List. It claims that the List is bloated. Yet, it was this same Opposition which closed the Suriname border on 2nd March 2020, ostensibly to prevent Guyanese who work in Suriname from returning to vote. Despite this it still lost the elections.
GECOM with the approval of the very Opposition had introduced a series of safeguards against voter impersonation. There is a folio with the photograph of every elector listed on the Voters List.
If someone tries to impersonate a voter, this will be detected by the Polling Agents of the various political parties. The APNU+AFC fielded polling agents at nearly all polling stations in Guyana. In 2015, it boasted that it was able to prevent voter fraud by this measure. But when it lost fairly and squarely in 2020, it claims that dead and migrant persons voted, one person even going as far as claiming that the PPPC bought out all 2,000 of the APNU+AFC polling agents.
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