Letter: Constitutional and Rights Commissions must not be subject to direction or control

Dear Editor,

From the inception of the APNU+AFC government, rule of law and good governance in Guyana have been under threat. Every day the actions of the government are conforming to Guyanese worse fears of returning to a dictatorship as the subversion of our constitution, unaccountability, non transparency and discrimination become pervasive.

It has become necessary for me to remind that the Constitutional and Rights Commissions; namely the Indigenous Peoples Commission, the Women and Gender Equality Commission, the Rights of the Child Commission, the Human Rights Commission, the Ethnic Relations Commission and the Public Procurement Commission are all entitled to independence afforded to them by the constitution. The autonomy, financial and operational independence must be preserved and respected by the executive, their agents, servants and the Legislature.

No one who is not a Commissioner or the Commission acting as a whole has any right or authority or privilege to interfere in the staffing, fixing of work programs or giving any directions whatsoever as it relates to their functions. The Chief Executive Officers and all staff members must be aware that they are protected and are not beholden to any authority outside of the Commission. They are expected to perform their duties impartially and free from fear. They cannot be sanctioned by anyone outside of their respective Commissions. As it relates to the Ethnic Relations Commission, Article 212 B (6) states: “ The Ethnic Relations Commission shall appoint a Chief Executive Officer who shall serve as Secretary and such other officers as may be necessary for the efficient discharge of its functions, on such terms and conditions as may be determined by the Commission, save that the remuneration of the officers and employees shall be subject by the approval of the National Assembly”. As it relates to the Constitutional Rights commission stated above, Article 212 P (1) states: “Each commission established under Article 212 G(1) shall appoint on such terms and conditions as may be approved by the National Assembly a Chief Executive Officer (who shall serve as its secretary) and the secretary and assistants to the Chief Executive Officer..”

As it relates to the Public Procurement Commission Article 212 Z(2) states “The Commission shall appoint a Chief Executive Officer who shall serve as secretary, and such other officers and employees as may be necessary for the efficient discharge of its functions. The terms and conditions of the Chief Executive Officer and the two most senior officers shall be subject to the approval of the National Assembly. “

It is instructive to note that all these Commissions receive financing as a direct charge from the Consolidated Fund and it is not subject to the same treatment as other budget agencies. Further, Article 226 (1) of the constitution states: “saved as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a Commission shall not be subject to the direction or control of any other person or authority”.

As a result of the stated above I offer the following guidance:

1. No member of the Executive, the speaker or any member of the National Assembly or staff can interfere with the work and functions of these Commissions.
2. The National Assembly is responsible for the process that leads to the naming of the Commissioners, once that is accepted by the National Assembly their role is completed.
3. The President, according to the constitution is responsible for the swearing in of these Commissioners; once that is done the President’s role is completed.
4. These Commissions are to work independently and they provide their reports to the National Assembly.
5. It is the Commissions that advertise, interview, recruit and sign contracts with their staff. The government or any of its servants or agents has no role in staffing these Commissions since these Commissions are expected to review and pronounce on government’s actions. The staff cannot be beholden to the executive as a contract with the executive compromises the staff, who is the recipient. This should not be allowed and should be rejected by all parties concerned.
6. It is the various Commissions that will determine the remuneration of members of staff subject to the approval of the National Assembly. It therefore follows that it is the various Commissions that will determine the contract and terms and conditions of those contracts, not an external authority.
7. It is expected that all Commissioners, once sworn in and duly appointed, function independently, impartially, without fear and favour in the execution of their duties and should ensure that their support staff are suited and are free from political interference.
8. The general public, particularly members of civil society organizations who participated in the process that allows for the appointment of Commissioners should not sit in silence and allow these Constitutional bodies to be undermined, hijacked or influenced by the executive or any other authority. Breaches must be exposed, condemned, addressed and it is expected that the constitution be upheld as the supreme law of the land.

I write this letter as the former Chairman of the Ethnic Relations Commission and as a Member of Parliament and Member of the Parliamentary Committee of Appointments and Public Accounts Committee.

I will be carefully following and publically speaking on this matter even as we now have in place the Public Procurement Commission and we are getting ready to name new Commissioners for the other Rights and Constitution Commissions.

Yours faithfully,
Bishop Juan Edghill