The Speaker has no legal limb upon which to act

Jul 19, 2024 Features / Columnists, Peeping Tom

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Kaieteur News – A legal conundrum exists in respect to recalling the person presently holding the one seat won by the joinder list of parties in the 2020 general elections. That person is from a party known as The New Movement (TNM) and under an agreement with the other joinder parties was supposed to have served a term of three months in the National Assembly.

In accordance with the understanding reached by the parties, the third party to the joinder should have by now assumed that seat in the National Assembly. But from all accounts, the current holder is refusing to give up the seat and give way to some from A New and United Guyana (ANUG). As such, a letter was supposedly been dispatched to the Speaker of the National Assembly calling for the recall of the person accused of squatting on the one seat won by the joinder parties.

Guyana has recalled legislation which allows for the Representative of the List of any party to recall members. Under that legislation, a member can be recalled when the Representative of the List indicates in writing to the Speaker, that after meaningful consultation with the party or parties that make up the list, that the party or parties have lost confidence in the member and the Representative of the List has issued a written notice of recall to that member and forwards a copy of that notice to the Speaker.

The problem that arises for the Speaker is who is mandated to recall a parliamentarian in a case in which there is a joinder of lists. Since there is a joinder of lists, there is no single representative of the combination lists.

The parties to the joinder list, by mutual agreement, consented to rotate the single parliamentary seat that was won by them. If there is a violation of this agreement, this is a matter to be settled among the parties. It is not for either GECOM or the Speaker of the National Assembly to impose a solution.

The Speaker cannot recall the parliamentarian because, unfortunately, the law does not provide for a Representative of the combined lists for joinder parties; each of the lists of the parties to the joinder has its own Representative but there is no Representative of the Joinder List. This is the legal vacuum that exists and which, I humbly believe, prevents the Speaker from recalling the incumbent occupier of the seat.

To better understand this legal lacuna, it is necessary to explain the concept of a joinder of lists and the conditions of good faith which are required for its successful operation.

The concept of “joinder of lists” in elections is often found in the context of proportional representation systems. It takes place when two or more political parties agree to combine their electoral lists for the purposes of seat allocation. The parties agree to join their lists together before the election. This agreement is formalized and GECOM is so advised prior to and not after the elections.

During the election, votes cast for any of the parties to the joinder of lists are pooled together for the purpose of seat allocation. The combined votes of the parties are used to determine the total number of seats they are entitled to, based on the proportional representation formula used in the election.

Once the total number of seats for the joinder is determined, the seats are then usually distributed among the participating parties according to the number of votes each party received individually within the combined list. In the case of the 2020 elections, there was only one seat won and therefore by mutual agreement, the parties decided to rotate this seat in proportion to the votes each received. This is how the present incumbent holder of the seat is said to have been given three-month occupancy of the seat.

The joinder system has the advantage of small parties benefitting from combining their lists and thereby increasing their chances of surpassing electoral thresholds and gaining representation. But it has the downside of managing the seat distribution or terms of rotation, and this aspect relies on mutual agreement and good faith among the parties.

Unfortunately, it my considered opinion that the mutual agreement entered into between the parties to the joinder is not legally binding or legally enforceable. Further, I do not believe that the Representative of the List of the TNM can recall the present member because there is no legal provision for a Representative of a joinder list. Unless and until accommodation is made for such a representative, then the parties to joinder have to settle this matter internally and not attempt to inveigle the Speaker to do something which he is not legally empowered to do.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

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• agreement, National Assembly, parties, Peeping Tom, TNM

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