Indictment is not a conviction

Oct 09, 2025 Features / Columnists, Peeping Tom

(Kaieteur News) – When it comes to the issue of disqualification for election as a member of the National Assembly, Article 155 is the main clause for eligibility to election as a member of the National Assembly. It reads (in part) as follows:

“(1) No person shall be qualified for election as a member of the National Assembly who —

(a) is, by virtue of his or her own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state; …

(b) is of unsound mind and has been so found by a court; …

(d) holds or acts in public offices enumerated (such as judges, members of commissions, etc.) …”

In effects what this means is that a person who, by their own act, has recognition (allegiance, obedience, adherence) to a foreign power or state is disqualified. This is invoked in relation to dual citizenship. Second, a person who is of unsound mind as declared by a court is disqualified. Third, a person who is under a sentence of death or imprisonment for more than six months is disqualified. Fourth, holding certain public offices or acting in them is also a disqualification.

Complementing the constitutional disqualifications, Guyana’s National Assembly (Disqualification) Act, Cap. 1:06 provides further disqualification rules (beyond the constitutional floor). A person is disqualified if they are a party to or partner in a firm, or director or manager of a company, with certain government contracts, etc. Also disqualified are persons who hold offices in foreign legislatures, or certain security or defence positions, and others listed.

But what about someone who has been indicted in a foreign jurisdiction? Is that person disqualified from becoming a member of the National Assembly? The short answer is no. But why should a person who is indicted for a serious offence in a foreign jurisdiction not be ineligible for election to the National Assembly?

In democratic jurisprudence, eligibility for legislative office is a serious threshold that implicates the rights of voters and the presumption of innocence. The constitutional design in Guyana (via Article 155) shows that not every wrongdoing, arrest, or even indictment leads to disqualification. Only certain convictions, of a certain severity and duration, qualify to disqualify, and then only while the sentence is operative (or “under sentence”).

A foundational principle in modern constitutional systems is that an individual is presumed innocent until proven guilty. To disqualify someone from participating in democratic representation on the basis of mere accusation or indictment—especially in a foreign jurisdiction over which the state has no control—would violate that presumption and risk undue deprivation of political rights.

Guyana’s Constitution itself does not use the word “indictment” as a disqualifier. It speaks of “sentence of death or imprisonment … for a term exceeding six months” or being “under a sentence” (i.e., currently serving or liable to serve). That shows the framers intended to tie disqualification to conviction and punishment, not mere formal charges. Thus, a person indicted in a foreign court but not yet convicted, or whose conviction is not yet final and sentenced, should not be disqualified under the constitutional scheme.

Article 155(c) provides the specific trigger: “is under a sentence of death or imprisonment for a term exceeding six months” Interpretation of that phrase typically yields the following requirements: First, there must be a final judicial finding of guilt in a court of competent jurisdiction. Only upon conviction does the person become “under a sentence” in a meaningful legal sense. Second, the sentence must exceed six months. A conviction with a sentence of six months or less would not disqualify under Article 155(c). Third, the person must actively be serving (or liable to serve) that sentence, or the sentence must still be in force (i.e., not fully discharged or expired). Once fully served or remitted, the person ceases to be “under” the sentence.

Because the Constitution refers to “imprisonment” generally, the disqualification applies to convictions under Guyanese law (or any law that is operative in Guyana). A foreign conviction will not automatically count unless recognised or enforced under Guyanese law (e.g., under treaties or domestic statutes). The constitution does not explicitly provide those foreign convictions count for disqualification.

Thus, unless or until the foreign court convicts and sentences the person to imprisonment exceeding six months (and such sentence is recognised in Guyana), the mere indictment cannot constitutionally disqualify them.

If, in a foreign jurisdiction, the person is convicted and sentenced, Guyanese authorities would need to consider whether that conviction and sentence should be recognised domestically (e.g. under extradition, comity, or mutual recognition treaties). Without local recognition, it may not amount to being “under sentence” in Guyana.

(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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Azurddin Mohamed, conviction, Indictment, Peeping Tom

One thought on “Indictment is not a conviction”

habeeb October 9, 2025 at 1:25 pm

NANDLALL the AG is waiting with OPEN ARMS for the papers to facilitate
extraditing the Mohameds… the just recently said so.

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