Another ERC Commissioner speaks out

Feb 28, 2021 Letters

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DEAR EDITOR,

Kaieteur News – Given what is unfolding in the public domain, I feel compelled to offer a response as I did when I disassociated myself from an apology the Ethnic Relations Commission (ERC) issued to Member of Parliament, Catherine Hughes.
On numerous occasions, I argued that the Commission must be non-partisan, consistent and timely in its action and, in keeping with its mandate, meaningful intervention should have been made with regard to the political impasse from 2018-2020. On those occasions, I was firm that the good work done through messaging for racial healing and numerous interactions with stakeholders across the country would be overshadowed by what appears to be a sense of partisanship.
Sadly, the Commission, in my view, failed to offer impactful and definitive responses and take action when it should have on election-related matters pre- and post-March 02, 2020. It is no secret that the Commission was heavily criticized for not responding to aspects of what transpired especially during the five-month period following those elections.
One may question why my response now, its relevance and the timing. Both, in my view, allow for clarification. I did speak out internally with the expectation that the Commission as a whole would have responded in a manner expected and in keeping with its mandate. While support was found in a few, in the end, the majority prevailed. In hindsight, maybe I should have gone public long before.
I have been consistent in stating internally that any utterance or action by anyone that leads to disharmony must be of concern to the Commission. I held firm that, whilst ethnic related contentions are the main thrust of the Commission’s mandate, they are not in isolation of discontent being derived from political developments especially given the historical impact of elections here.
Others argued that only matters that are premised on ethnic infractions are within the Commission’s mandate. I held my position that the Commission itself was birthed out of political discord with one intent of trying to prevent same. The Commission eventually agreed and wrote some political Parties to bring attention and caution on the use of language not necessarily premised on racial infractions during the 2020 election campaign and which language was deemed to be undesirable and unhelpful to the promotion of harmony. Some, however, were adamant that no other intervention was necessary during the period of the electoral impasse. The race-related infraction argument and a negative impact on integrity were cited as major reasons. The reality now, is that integrity has seemingly been lost as a result of inaction.
The difference of opinions led to many vibrant exchanges on how the Commission should treat with election-related matters. Almost in every instance, my views and suggested course of action were in the minority. On numerous occasions, I documented my concerns and even tabled a motion for the Commission to state officially its position on the role of the second CARICOM team and the recount. This became necessary since many were not inclined to recognize CARICOM’s involvement and the actual recount and its findings. I still believe some haven’t.
When the motion came up for debate, the findings of the recounts were already made public and Dr. Mohamed Irfaan Ali, sworn in as President. The motion was rendered as irrelevant by the majority and in reality meant there is no official documented position of the Commission on those two issues. I even questioned the rational of the Commission sending a congratulatory message to President Ali when there was seemingly no official recognition of the process that led to his swearing in.
I must, however, relate events prior to that to demonstrate what seemed a sense of deliberateness to avoid any meaningful statement on political developments, reportedly by majority, to not offend the then government.
A Commissioner who was vehement that any suggested intervention by the Commission to the electoral impasse would negatively impact integrity, ensured that the word “rig” was removed from a letter sent recently to President Ali, was instrumental in changing the context of a press release, which is referenced later in this letter and vocal on the need to apologize to Mrs. Hughes.
I disagreed that fundamental issues, which led to the genesis of the political impasse, were deemed as being outside the realms of the Commission’s mandate. I believe that in any endeavour to resolve situations or conflicts, the genesis has to be identified and related parties confronted with the facts. If not, it could be seen as avoiding the real issue with possible impact on the mediator’s credibility.
I also pointed out that from the standpoint of the Commission; it is not about who wins, but about adherence to constitutional procedures in deriving the winner. Constitutional transgression is an affront to democracy and creates an enabling environment for discontent. If the Commission could have pronounced, as it did, on some language used during that said campaign, why then it could not pronounce on constitutional transgressions that led to an escalation of racial tension. That was my concern.
That, in my view, makes it imperative for the Commission to not stand, or appear to stand, on the sidelines on particular political developments that precipitate disharmony. While the Commission is expected to be non-partisan, I argued that it must take a side; the side of what’s right – Guyana’s side. An objective examination of related positions taken could reveal a seeming hesitancy to call “a spade a spade”. The same for constitutional transgressions.
Point “Q” of the Commission’s constitutional mandate speaks to “identify and analyze factors inhibiting the attainment of harmonious relations between ethnic groups…and to make recommendations”. Political developments that lead to discontent are major historical factors. The post March 02, 2020, election period, was no different and, in my view, should not have been ignored in the context of the Commission’s role of promoting harmony.
Permit me to state instances when the Commission should have acted but it didn’t.
1. Having investigated employment practices at GECOM and from its own findings, the Commission, despite calls by a few Commissioners, never recommended the reinstatement of Mr. Vishnu Persaud as the DCEO despite its findings that he was the most qualified candidate and that he was the first candidate in the history of GECOM who attained the highest score but not appointed.

2. As a result of the successfully passed December 21, 2018, NCM and with Parliament not agreeing to an extension of the constitutional 90-day timeframe, the elections were held a year after they were constitutionally due. While court cases ensued, the Commission in a September 18, 2019, Press Release, urged constitutional adherence and a swift resolution to the then political impasse; that was nine months after the NCM; six months after the constitutional due date for the elections. Before that Press Release, it was felt by some Commissioners that the Commission cannot tell GECOM what to do. While that may be so, nothing in my view prevented the Commission before September 18, 2019, as disquiet grew, from calling for the said constitutional adherence with regard to the holding of elections within the constitutionally stipulated 90-day timeframe taking into consideration the impact on race relations.

3. The Initial draft of that September 18, 2019, Press Release stated, “The Commission also respects the independence of GECOM as safeguarded in the constitution. However, it believes that any deviation from constitutional mandated processes could create an environment that potentially impinges on confidence and impartiality. In view of the final ruling and consequential orders of the Caribbean Court of Justice (CCJ) in June this year, the Commission is cognizant of the constitutional timeframe for holding elections catering for the circumstances at hand. It is cognizant that timeframe which should have been adhered to as per our constitution, would regrettably not be met thereby creating an opportunity for the belief of democratic regression”. That was edited to read, “The Commission urges patience as GECOM executes its mandate to arrive at a date for the elections”. Urging patience, while necessary, but in the context referred for adherence to constitutional elections timeframe, taking recourse to the court into consideration, can possibly be interpreted as turning a blind eye to constitutional transgression which derives democratic regression, and in turn, a disruption of peace. In that context, I felt that calling for the upholding of democracy is not divorced from the general mandate of the Commission.

4. The Commission, having observed the voting process and the counting of votes on March 02, at some Polling Places in parts of the country, issued a statement on March 06, 2020 pointing out those processes to be free, fair and transparent. It also urged GECOM to safeguard the integrity of the elections by ensuring that the verification and tabulation process with regard to Region Four as reflected in The Representation of the People Act, is followed, and that transparency is foremost. While the Commission subsequently observed the verification and tabulation of Statements of Poll (SOP) for Region Four, it did not pronounce on acts which were revealed and deemed unconstitutional and which further exacerbated discontent.

5. CARICOM recognized the Commission as an important stakeholder as evident from the meeting with its then Chairperson and the Chairman of the Commission. The Commission, birthed out of political gridlock, did not make any public statement on the actual findings of the recount or submitted a final report of its observations. In fact, mention of CARICOM’s role as a stakeholder was edited out from a Press Release.

All Observer groups and the local court in March, declared the verification process of Region Four SOPs as fraudulent and unlawful. All who observed the recount declared it fair and transparent.
I truly believe that the Commission missed opportunities to intervene meaningfully over time in the interest of the nation. Sadly, at that time, one Commissioner peddled the notion that the Caribbean Court of Justice (CCJ) was not the highest and final means of legal recourse of our country. That Commissioner recently pointed out that misinformation contributed to that conclusion.
I believe, as a Commission, we could not continue to ignore the genesis of the political impasse and pointed out that with the public not oblivious of any appearance of such avoidance, might have resulted in them perceiving the Commission as being selective, inconsistent, unwilling or even incapable of dealing with contentions that emanated from political developments.
I stated that the Commission’s words have weight and with the seeming continual avoidance during its tenure to frontally identify factors that inhibit the attainment of harmonious relations between the ethnic groups with regard to the NCM and the elections, I asked, what would have been the Commission’s position had the PPP/C been in government and the said scenario played out in 2018.
That aside, the Commission did not heed the advice of its Legal Officer to summoned leaders of the previous government and others involved, to denounce statements made during the violence at West Coast Berbice following the heinous killings of the Henry cousins. Time passed and escalation of tension, were reasons offered for not heeding the Legal Officer’s advice.
In addition, despite strong recommendations from the Legal Officer, the Commission chose to take a vote to dispatch a letter to current APNU+AFC Member of Parliament, Sherod Duncan, to note its concerns over comments, which he made on a social media programme. Such process was routine for others. Why the need for a vote on him? Currently, the Head of the Media Monitoring Unit, in his analysis on February 18, 2021, stated that Mr. Duncan, in a subsequent programme, violated the Racial Hostility Act and the Representation of the People Act since the comment has the potential to excite ill-will and foster hatred based on race. No action has been taken thus far. Leader of the Liberty and Justice Party, Mr. Lennox Shuman, was immediately summoned to answer for comments, which he made on a public programme.
I trust that the inference is not ambiguous.

Respectfully,
Neaz Subhan
Commissioner

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