Court of Appeal affirms residency not a requirement for voting

Feb 11, 2020 News

---

– Unanimous agreement on CJ’s decision

The Court of Appeal has affirmed a December 2019 ruling by Chief Justice Roxane George in which she held that pursuant to the laws, living in Guyana is not a requirement for voting. Yesterday, the panel of Judges led by Chancellor of the Judiciary Yonette Cummings-Edwards unanimously agreed that the Chief Justice was correct in arriving at such a decision.

The other judges were Rishi Persaud and Dawn Gregory. In upholding the ruling of the Chief Justice, the panel of judges agreed that there is no additional requirement of residency as a qualification for voting. The Chancellor in her ruling held that the provisions of Articles 59 and 159 of the Constitution must be read in conjunction.
Article 159 outlines: Subject to the provisions of Article 159, every person may vote at an election if he is of the age of eighteen years or upward and is either a citizen of Guyana or a Commonwealth citizen domiciled and resident in Guyana.
Article 159 (1) reads: No person shall vote at an election unless he is registered as an elector. Article 159 (2) (C) reads: (2) Subject to the provisions of paragraph (three) and (four), a person shall be qualified to be registered as an elector for elections if, and shall not be so qualified unless, on the qualifying date, he or she is of the age of eighteen years or upwards and either – (a) a citizen of Guyana; or (b) is a Commonwealth citizen who is not a citizen of Guyana and who is domiciled and resident in Guyana and has been so resident for a period of one year immediately preceding the qualifying date; and (C) satisfies such other qualifications as may be prescribed by or under any law.
She highlighted that the Constitution clearly states that a person becomes eligible to be placed on the National Register of Registrants (NRR) when they turn 18. To be registered, these persons would have to be at their place of abode at the time the enumerator visits. They however cannot be removed from the NRR unless they are certified to be insane or if they have been convicted by a court for any elections-related offence five years prior to the qualifying date set.

According to the Chancellor, in reading the provisions of the aforesaid Articles, she is of the view that residency is not an additional qualification to vote on the qualifying date outlined in Article 159 (6). Though not ventilated before the Chief Justice, Attorney General Basil Williams, backed by Solicitor General Nigel Hawke, the Appellants, had contended that the residency requirement was introduced via the Constitution Amendment Act No. 4 of 1991, as it was validly passed.
Those in support of this contention were lawyers for the Chief Elections Officer and the Guyana Elections Commission (GECOM). But Anil Nandlall, lawyer for the Respondent, Christopher Ram, as well as lawyers for the Bar Association of Guyana which appeared Amicus Curiae, were in disagreement. They all contended that the Constitution Amendment Act No. 4 of 1991 was a piece of “sunset” legislation, as it was enacted specifically for the 1992 general and regional elections.
Nandlall had robustly argued that the piece of legislation under review died a natural death, when the situation it was intended for came and went. Weighing in on this issue, Justice Persaud said that although Article 65 of the 1966 Constitution provided for a one-year residency requirement, it was removed from the current Constitution.
Deeming their reliance on the Constitution Amendment Act No. 4 of 1991 as “badly misplaced and fundamentally flawed”, Justice Persaud agreed with Nandlall, that the legislation was only passed to cater for the 1992 elections. This Act, he said, did not to any degree, enforce conditions permanently.
“The Constitution Amendment Act No. 4 of 1991 was essentially a piece of sunset legislation which has its origin in Roman law…” Justice Persaud underscored. He said that although it introduced the requirement of residency, it was limited to a specific period. Justice Persaud therefore agreed with the Chief Justice that there are no laws which exclude Guyanese citizens residing overseas, or out of their district from voting.
He said that GECOM does not have the authority to remove or disqualify an elector, as this can only be done by virtue of the provisions of Article 159 and subsections 2, 3 and 4. Like Justice Persaud, the Chancellor pointed out that the law makes provisions for voting overseas, and those who qualify in this category include Ambassadors, High Commissioners, as well as their spouses and children; and staff of an Embassy, as well as their family members.
Both judges noted that Guyanese residing overseas are not included in this category as they would have to fulfill the residency requirement for registration. In rejecting the arguments proffered by Williams, the Chief Elections Officer and GECOM, the Chancellor said that the Constitution Amendment Act No. 4 of 1991 has already served its purpose and is no longer valid, since it did not find itself in the current Constitution, despite there being several constitutional reforms.
The entire panel of appeal judges dismissed Williams’ contention that though the Act was omitted by error from the Constitution, it is still in full effect, pursuant to Section 10 of the Law Revision Act. The Chancellor, in concluding, held that being a citizen of a country must carry some privileges and the right to vote seems to be one.
She said that to impose additional conditions for non-resident voting will bring into question what decides non-residency in relation to persons studying and working overseas, and those preparing to return to Guyana. Though Justice Gregory did not go into the details of her ruling, she said she had the opportunity of perusing the rulings of her colleagues, and was therefore, in full agreement.
In light of the foregoing, the panel of judges agreed that the appeal was without merit and ought to be dismissed; parties in the matter were ordered to bear their own costs. In a post via his Facebook page Nandlall in commenting on the favourable ruling said “Democracy, constitutionality, the rule of law & the rights & freedoms of the Guyanese electorate won a resounding victory!”
While Williams said he was not disappointed with the court’s ruling, he indicated that he will be appealing to the highest court, the Caribbean Court of Justice (CCJ).

---

---