Introduction
Once again, the role of GECOM in the determination and publication of the results of national and regional elections as well as its general functions have been highlighted. GECOM as it exists today is the product of the efforts to address widespread concerns that elections prior to 1992 were not free and fair. A limited reform process resulted in the 1992 elections being conducted under a seven-person Commission made up of three members named by the Government, three by the Opposition, and the Chairman selected by the President from a list of six names submitted by the Leader of the Opposition is often referred to as the [President] Carter formula.
While politically the formula was considered acceptable since both “sides” of the divide felt represented in the process, it was intended to be a temporary arrangement to be reviewed for subsequent elections. Inertia set in and the formula has remained unchanged for all five elections since 1992. It should not continue.
Functions of GECOM
The functions of GECOM are set out in the Constitution and the Representation of the People Act. Article 62 of the Constitution states that elections are to be independently supervised by GECOM in accordance with the provisions of article 162. And article 162 confers on GECOM the power to exercise general direction and supervision over the registration of electors and the conduct of all elections of members of the National Assembly, and the power and duty to issue instructions and take such action to ensure impartiality, fairness and compliance with the provisions of the Constitution or of any Act of Parliament.
The relevant Act of Parliament is the Representation of the People Act, section 4 of which states that in addition to the functions of GECOM set out in the Constitution, GECOM has such functions as are assigned by the Act. A read of the Constitution and the Act seems to make it quite clear that the principal function of the Commission is the exercise of general direction and supervision set out in article 162 while the operations fall within the authority of the Chief Elections Officer.
Successive GECOM Commissioners have however acted well beyond their mandate and one enduring picture from the 1997 elections was former Chairman reading out on television the votes cast for party lists from statements of poll. Thankfully, that has been discontinued but the Commissioners’ actual role in the process is still well beyond what the law prescribes. They would do well to stay within their mandate and would better serve the process if instead of blaming the legislature for the inefficiencies in the electoral process, Commissioners would make regulations for the better conduct of elections as they are empowered to do under section 150 of the Representation of the People Act.
Their powers to make regulations are wide and GECOM’s attribution of blame to the legislators in the light of its persistent failure to avail itself of those powers smacks of ignorance or disingenuity.
Let us now look at the provisions of the Representation of the People Act regarding counting of the votes and declaration of the results.
Step 1 – The count at the place of poll
Counting and tabulation of the votes takes place at the Polling Station on the close of the poll. Section 83 lists ten specific activities including accounting for all spoilt, tendered and unused ballot papers and counting of the votes for each list of candidates. Each person present including election officers, duly appointed candidates, election agents and polling agents, has the right to examine each ballot paper.
After the count the Presiding Officer is required to complete the ballot paper account, the tendered ballot paper account and the statement of poll (SoP) in the form prescribed by the Act and make sufficient copies for the RO, to the assistant presiding officer, the duly appointed candidates or the polling agents as are present, and the Chief Elections Officer. The SoP is then posted up in a conspicuous place outside the polling place as conclusive evidence of the result of the election, unless there is a recount of the votes: section 83 (9A).
The Presiding Officer is then required to deliver to the returning officer of the district the ballot boxes with the seal of the PO and those of the candidates and polling agents who wish to do so, sealed packets containing “marked copies of the official list of electors or part thereof, notices of appointments to vote as proxy and copies of the lists of proxies, the poll book, the ballot paper account and tendered ballot paper account and such other election documents as may be decided upon by the Commission…”. The Presiding Officer affixes his seal to the packets and invites the duly appointed candidates and polling agents to do likewise.
The key to the sealed ballot box and the Statement of Poll are placed in one envelope which is also sealed. Section 83 provides for the accompanying of the ballot boxes from the polling places to the returning officer of the district.
Step 2 – Adding up the Statements of Poll
In the presence of the candidates, counting agents, and such persons selected by the returning officer to assist him, the returning officer adds up the votes of each party in accordance with the Statements of Poll and publicly declares the votes for each party.
There is no prescribed form if the declaration is written, or words if oral, which the publication should take and whether persons other than the candidates, counting agents, the persons assisting the returning officer and members of the Commission, if any, are permitted to be present at the public declaration.
The Act also provides for steps to be taken where a material error is discovered by an election officer where (a) the Statement of Poll has not been sent to the district returning officer, and (b) where it has already been sent.
There is a window up to midday the following day for the counting agent appointed by an election agent to request the Returning Officer to conduct a final (general or limited) count of the votes counted by the presiding officers under section 83. When the recount is done the RO then confirms or varies the declaration of the votes in the district by way of a public declaration of the result of the final count.
After the completion of the final count, the returning officer makes up separate packets of counted and rejected ballots, verifies the ballot paper accounts, reseals the packets of unused and spoilt ballots, publicly declares the results of the final count and deliver to the Chief Elections Officer a return in writing of the final count using form 24 set out in the Act.
On the ascertainment of the votes cast in the district the RO must communicate to the Chief Elections Officer “by the quickest means available” the total number of valid votes cast for each party: Section 84 (11).
Step 3 – Ascertainment of results (section 96)
On receipt of the information received under section 84 (11), the Chief Elections Officer calculates the number of votes for each party on the basis of votes counted and the information furnished under section 84 (11) to ascertain the results of the elections in accordance with section 97 and 98. These deal with allocation of seats and membership of the National Assembly. There is a problem with section 97 which provides for 53 seats rather than 65. Note that the basis of 53 seats is in direct conflict with section 11 C.
The CEO is required to prepare in manual and electronic form a report which shall be the basis for the declaration of the election results and the election of the President and his assumption of the office. The President may however only undertake any duties after he has taken the oath of office.
The real action therefore, and any potential delays, should be only at the level of the district returning officer (DRO) since the bulk of the tabulation is done by him/her. The DRO, with the assistance of the Chief Elections Officer, has to ensure that logistical arrangements are in place for the early delivery to him of the ballot boxes and paraphernalia from the presiding officers and he must ensure that the tabulation of the statements of poll for the polling places in his/her district is completed in a timely manner.
The CEO receives copies of the statements of poll long before the DRO submits to him the report and there is hardly any reason why preliminary results based on those statements of polls cannot be issued by GECOM. GECOM ought to be able to do so within 24 hours of the close of poll with those preliminary results used to support and validate its own calculation with the ten statements from the ten district returning officers. Auditors would consider such action as constituting sound internal checks.
The failure by GECOM to adhere to the statutory procedures has received adverse criticisms from the court in almost every election petition since 1992. GECOM has been dismissive of each such admonition. That is not acceptable. The citizens of the country must not have to endure the dangers caused by the failure of seven GECOM commissioners and the Chief Elections Officer to follow the Constitution and the law.
This is not to say that counting procedures are my only concern with GECOM. In a letter appearing in the Stabroek News of May 10, I raised another issue of misuse of state resources in the election campaign. I suggested that the new Government should “mandate GECOM to make recommendations and proposals to prevent such abuses ever taking place again in Guyana”.
Notwithstanding the change of government, I continue to hold that view.