Guyana's Judicialization of Politics: A Need for Stronger Political Institutions

The Guyana Times reports that over the past twenty years, political parties in Guyana have become increasingly adept at utilizing the court system. The publication notes that a more challenging path involves cultivating a political culture where constitutional duties are accepted without needing judicial explanation.

Scholars Cynthia Barrow-Giles and Ronnie Yearwood, in a study examining eight significant cases between 2018 and July 2020 concerning the 2020 elections, observed how political actors were shifting decisions typically handled politically into the courts. They identified this trend as the growing "judicialisation of electoral politics," meaning political actors are increasingly asking courts to resolve issues that established political bodies should normally address. This scholarly concern remains relevant beyond the five-month impasse.

A recent essay titled "The Decline of Politics, Lawfare and the Coming Technocratic Government" extends this concern to the Caribbean political elite. The essay suggests that when opposing sides stop viewing each other as legitimate participants, politics loses its capacity for negotiation. In such a scenario, legal actions can become merely a method for defeating opponents, and frustration with representative government may make rule by experts seem appealing, potentially leading some participants toward extra-parliamentary options, as has been seen in Guyana.

For Guyana, the article emphasizes the distinction between using a court to defend a voter's decision and using it to undermine that decision, as both involve litigation but have opposing effects on democracy. The author asserts that the 2020 events do not justify the idea that judges should have remained passive while political actors resolved matters among themselves, given that the courts provided essential constitutional safeguards. Without enforceable rules, an appeal for political compromise risks becoming an invitation to negotiate away citizens' votes, and an election outcome is not an initial offer.

Despite this, the publication states that a nation faces a serious issue when adherence to fundamental democratic duties consistently necessitates judicial involvement. While courts possess the ability to interpret the Constitution, restrain improper conduct, and validate official determinations, they cannot provide the good faith that political leaders might withhold. Furthermore, even well-reasoned judgments cannot build lasting public trust if parties instruct their supporters that institutions are only valid when they yield favorable results. The article cautions against equating independence with agreement with one's own side, and against defining bias simply as a loss for one's lawyers.

There is also a caution regarding the common accusation of "lawfare" associated with the judicialization of politics. The piece clarifies that a politician facing legal action is not automatically a victim of political persecution, and conversely, legal processes can be misused to harass rivals or extend disputes. The proper focus should be on evidence, jurisdiction, fairness, and consistency, not party affiliation.

The Guyana Times contends that substantial political work is required in Guyana because electoral administration demands public confidence. Parliament should be utilized for meaningful oversight, and constitutional reform requires serious involvement. The ethnic insecurities present require sustained engagement from leaders willing to acknowledge concerns outside their own constituencies, and these duties cannot be indefinitely delegated to judges, nor can they be handed over to technocrats.

Although Guyana's oil wealth makes specialized knowledge necessary, this expertise does not eliminate political choices. For instance, while engineers can evaluate a road or economists can calculate its expenses, determining whether that road should take precedence over housing, drainage, or rural healthcare involves competing values and needs. Citizens must have the ability to influence these choices and hold their representatives accountable.

Consequently, the Guyana Times concludes that Guyana requires both a robust set of political institutions and an independent Judiciary. Political parties must negotiate where differences allow for compromise, adhere to legal obligations where required, and accept that democratic competition includes the possibility of losing. While a courthouse can resolve a specific case, the construction of a democracy remains the responsibility of politics, necessitating a political culture that functions within the law and politicians who can accept that the law sometimes requires them to lose.