Is the extension of Hicken’s tenure really lawful?

Aug 30, 2023 Letters

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Dear Editor,

The front page of Guyana Chronicle, August 24, 2023 screamed, “Extension of Hicken’s tenure is lawful – Attorney General affirms” The Chronicle quoted from Nandlall’s weekly television programme, “Issues in the News.”

According to the news outlet, Nandlall addressed criticism raised by Leader of the Opposition Aubrey Norton and Clinton Conway, which were centered on the legality of the extension. Editor, please permit me to put things in proper context. Article 211 (1) of the Constitution of the Co-operative Republic of Guyana states, ” Every Commissioner of Police and every Deputy Commissioner shall be appointed by the President acting after meaningful consultation with the Leader of the opposition and Chairperson of the Police Service Commission after the Chairperson has consulted with the other members of the Commission. ”

What is consultation or meaningful consultation? Article 232 of the Constitution explains, ” ‘ consultation ‘ or ‘ meaningful consultation ‘ means that the person or entity responsible for seeking  consultation shall – (a) identify the person or entity to be consulted and specify to them in writing the subject of the consultation and an intended date for the decision on the subject of consultation; (b) ensure that each person or entity to be consulted is afforded an opportunity to express a considered opinion on the subject of the consultation; and (c) caused to be prepared and archived a written record of the consultation and circulate the decision to each of the persons or entities consulted.”

In my letter to the editor I posited that the President does not have to get approval from those consulted to make the appointment. The power to remove from office is set out in Article 211 (3) of the Constitution. The Constitution speaks about the appointment of a Commissioner of Police and acting Commissioner of Police and the removal from office.

It is silent on the extension of service of a Commissioner of Police.  Perhaps, the framers of the Constitution could not have foreseen the time would have arrived when the movers and shakers of the Guyana Police Force would have considered appointing an Assistant Commissioner of Police as an acting Commissioner and  later unlawfully extending his service for a date to be determined.

The Attorney General in his weekly programme agreed with me that there is no provision in the Constitution for the extension of the services of a Commissioner of Police or an acting Commissioner of Police. However, he submitted that the President acted in accordance with the Constitutional (Prescribed Matters) Act Chapter 27:12 when he extended the services of acting Commissioner of Police, Clifton Hicken.

It is apposite to peruse the relevant section of this Act. Here is what Section 2 (b) states, “the President acting on the recommendation of the Police Service Commission tendered after the Prime Minister has concurred on the recommendation may permit a Commissioner of Police who has attained the age of fifty five years to continue in office until he has attained such later age, not exceeding sixty years as may (before the Commissioner of Police has attained the age of fifty five years) have been agreed with the Commissioner of Police.”

There are many unanswered question in relation to the Act and action or lack of action taken by those in authority:  When did the Police Service Commission meet and made recommendation to the President for the extension of Clifton Hicken as acting Commissioner of Police? When did the Commission meet with the President?  Are minutes of the meetings if held available? Was it a one person’s decision or a unanimous decision of the Commission?

When was the recommendation submitted to the President?  Did the Prime Minister concur with the Police Service Commission? If so, did the Prime Minister submit his recommendation to the President? When was this done? Why was Hicken’s extension done after he reached the age of fifty five years? How can one extend something after it had expired?  Why is the date of the extension still in limbo? Was Article 232 of the Constitution complied with? In the interest of accountability, transparency, justice and fair play let the authorities produce evidence to adequately answer the questions listed above.

In my humble opinion the two main actors of Chapter 27: 12, the Police Service Commission and the Prime Minister have over the past years lost a lot of creditability. I find it difficult to believe them. Editor, you may recall that in July 01, 2022 Bishop Patrick Findlay, the Chairman of the Police Service Commission announced in an interview that he was awaiting the list of ranks recommended for promotion from the Commissioner of Police. On July 02, 2022 the Police Service Commission released a list of over two hundred and fifty persons promoted by the Commission.

There was no due diligence. As a result among the promotions were: three senior superintendents were promoted to assistant commissioners; one superintendent promoted to senior superintendent;  one deputy superintendent promoted to superintendent, one assistant superintendent promoted to superintendent; one inspector promoted to superintendent; (They all had disciplinary matters pending against them at the Police Service Commission which is a bar to promotion); one female was promoted twice; one civilian promoted; Not a single female  promoted to assistant commissioner or senior superintendent. Numerous ranks who did not pass the Appropriate Qualifying Examinations which is a prerequisite to promotion were promoted?

Several officers were overlooked for promotion. Numerous ranks were unjustly superseded. In a High Court case I can recall seeing an affidavit purportedly signed by the Prime Minister indicating that there was no meeting between Paul Slowe and the President when according to a government release and Paul Slowe the meeting took place.

It is important to note that the Constitutional (Prescribed Matters) Act Chapter 27:12 has collided head on with the Constitution. As stated above the Constitution mandates that the President holds meaningful consultations with the Leader of the Opposition and the Chairperson of the Police Service Commission who has consulted with other members of the Commission before a Commissioner of Police or a Deputy Commissioner of Police is appointed. The Leader of the Opposition was not consulted. Please do not tell me that the extension is not an appointment. Chapter 27: 12 referred to by the Attorney General does not cater for meaning consultation with  the Leader of the Opposition by the President  before the appointment of a Commissioner of Police or an acting Commissioner of Police as mandated by the Constitution.

This is a fatal breach of the Constitution which is the supreme law. Any law that is conflicting to the Constitution must bow down to it and say, “me a culpa.” I understand that persons are moving with break – neck speed to doctor and produce false documents to create the impression that the President followed the legal framework meticulously, ensuring that the extension was well within the bounds of the law. The Leader of the Opposition said that his party will challenge the extension of the service of Clifton Hicken as acting Commissioner of Police. In this case there are too many overhanging fruit of the poisonous tree. The authorities are unwisely nibbling around the edges of the Constitution. This matter is crying out for urgent judicial review which must go all the way to the Apex Court – The Caribbean Court of Justice (CCJ). I will not comment further on this matter. I rest my case.

May God help the Guyana Police Force.

Yours respectfully

Clinton Conway

Assistant Commissioner of Police

(Retired)

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• Assistant Commissioner of Police, Attorney General, Clinton Conway, Issues in the News, Nandlall

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