Dear Editor,
The issue of Commonwealth nationals other than Guyanese voting in our general and regional elections – something that has been in existence here for decades and is not alien to elections practice in other Commonwealth jurisdictions – first surfaced on social media last Monday, with all the wanton abandon and unbridled pronouncements that that medium allows. Not unexpectedly, the self-anointed election experts were loud in their questioning and in several cases, condemnation of this occurrence.
It was to me regrettable that later in an evening press conference, Ms. Yolanda Ward, the PRO of GECOM, displayed a clear ignorance of the law as it relates to the issue of Commonwealth nationals other than Guyanese voting in our elections. The PRO stated that ‘GECOM confirms that under Guyana’s laws Commonwealth citizens residing legally in the country for over one year are eligible to vote’.
Article 59 of the Guyana Constitution, entitled “Qualifications and disqualifications for electors”, is ‘[S]ubject to the provisions of article 159’, which is similarly entitled, and includes the qualifying words ‘… resident for a period of one year immediately preceding the qualifying date’ (presumably the qualifying date is the date of the person’s registration’). However more fatally, the PRO failed to acknowledge that Commonwealth citizens other than Guyanese desirous of voting in Guyana’s election must satisfy a dual requirement, in both Articles 59 and 159, and must be ‘domiciled and resident’ in Guyana.
It is to be noted that the time frame of ‘one year…’ only applies to residency and not to the requirement of domicile. This is perhaps rightly so, because domicile is a technical legal concept that often has to be applied on a case by case basis, and is not measurable solely on the basis of the duration of a person’s residence. Using my own life’s experience, I have been resident for varying periods in Barbados, London and the US (Boston) as a student, the US (New York) and Belgium for employment purposes, but throughout all that time I have remained domiciled in Guyana.
Why is this so you might ask, or how come? Simple: Guyana is where I make my permanent home and, while residing in all the other countries, I harboured a present intention to return to my original place of residence, indefinitely. Similarly, in the case of any Commonwealth citizen resident in Guyana, for whatever period, if they are like me and they always have a yearning to return to the land of their birth, they would not be domiciled in Guyana. In other words, they would not have formed the intention to remain indefinitely in Guyana.
I ask you, which GECOM registration clerk, or which polling day staff could regard a Commonwealth national appearing before them and reasonably come to the conclusion that the person intends to remain indefinitely in Guyana, and is therefore domiciled as well as resident here. This is especially the case if they are here on a short-term contract (I resided in Belgium for nine years without acquiring Belgian domicile), without their family, working for income to repatriate to their relatives back home.
This misrepresentation of the law was unfortunately repeated by the Head of one the International Observer Missions, perhaps understandably do, as it was what had previously been presented to the public by GECOM. In the case of the Carter Center, which brought their own legal counsel, the dual requirements of domicile and residence in Articles 59 and 159 of the Constitution seemed to have escaped attention.
So then, to the noise makers on social media, and to GECOM and the others who erred in interpreting this issue I say, should not the quarrel about Commonwealth citizens voting last Monday be about whether the requirement of domicile of Commonwealth citizens was overlooked in favour of a residency requirement alone? Might not those Commonwealth citizens other than Guyanese who voted last Monday have been disqualified from so doing, because they might not have fulfilled the dual requirements of being ‘domiciled and resident in Guyana’?
Is it the case that the draftsman, with his infinite wisdom and foresight, sought to restrict the facility of voting to only those Commonwealth citizens who have resided here for a sufficiently long period of time, so that they lose the intention of permanently returning home and instead desire to take up residence in Guyana indefinitely? If such were the case behind the drafting, the dual constitutional requirements would prevent precisely the kind of occurrence that took place last Monday, where Commonwealth citizens residing here, for whatever short period of time, were allowed to exercise their franchise to choose a government of this country, without having the faintest of connection or permanence attached to the duration of their stay here.
The cynics may say that a busload of foreigners can’t on their own change the outcome of an election. But what if the next time it is several busloads…. I leave the issue in the hands of GECOM, the plethora of NGO’s that have taken up this issue, including the moribund GHRA, and the election observers, both international and local.
Perhaps the issue of the requirements in Article 59 and 159 could be one of the early items on the agenda of the Constitutional Reform Commission, the work of which we have been awaiting for years now…