Chief Justice rules recount valid, must be used to declare elections winner

Chief Justice Roxane George on Monday ruled that the results of the national vote recount must be used to declare the results of the March 02 elections; she also ruled that the country’s Chief Elections Officer is not a “lone ranger” or a law unto his own and must do as he is directed by the Guyana Elections Commission (GECOM).

The Chief Justice first ruled that she had the power to hear and determine the case because the issue that needed to be resolved was whether officials of GECOM, namely the chair of GECOM and the Chief Elections Officer, were acting lawfully. Justice George then ruled that the Caribbean Court of Justice (CCJ) endorsed the national vote recount.

The ruling means that Chief Elections Officer Keith Lowenfield must prepare a report of the national vote recount that accurately represents a victory for the Opposition People’s Progressive Party (PPP) and not APNU+AFC as he had done before using figures that were deemed to be fraudulent.

The Chief Justice found that the national vote recount overtook the original vote count and so any declarations made before were correctly set aside by Justice Claudette Singh, the Chair of GECOM.

She said the “only” data that can be used would have to be the recount results and the previous ten declarations cannot be “resurrected.”

AS such, the Chief Justice said there can no longer be an impasse between Lowenfield and the GECOM Chair and that her instructions to him to produce a report based on the recount are valid.

Misenga Jones, an agent of President David Granger’s Coalition filed the case in the High Court.

She wanted the High Court to declare that Lowenfield can decide for himself what numbers he chooses to use in determining the results of the elections and that GECOM was bound by the Constitution to accept his report and declare the results of the elections.

The basis for the applicant’s case was that Article 177 (2) dictates that the GECOM chair must act “only” on the advice of the Chief Elections Officer to declare the winner of the elections.

But it was pointed out that Section 18 of the Election Laws (Amendment) Act of 2000 specifically provides that the Chief Elections Officer shall be subject to the direction and control of the Commission.

It was argued that in determining the results of the election, it could not be construed that the phrase “acting only in accordance with the advice of the Chief Election Officer” would mean any report whatsoever that the CEO produces must be acceptable as that would be tantamount to elevating the CEO above the Commission, the Constitution and the Laws of Guyana.

“One man or woman cannot be vested with such absolute unchecked power. It is inconceivable that the framers of the constitution would have so intended,” Kim Kyte-Thomas, attorney for the GECOM chair had argued.

In any case, it was noted that the issues raised in the application were “res judicata” in that they were already heard and determined in previous judgments of higher courts.

The Court of Appeal, in a case brought by APNU+AFC candidate Ulita More, found that the Recount Order was constitutional. The Chief Justice ruled that since the issued was dealt with already, it could not be canvassed again and she had to rely on the Court of Appeal judgment.

And in the case brought by APNU+AFC supporter Eslyn David, the CCJ had pronounced that “unless and until an election court decides otherwise, the votes already counted by the recount process as valid votes are incapable of being declared invalid by any person or authority.”

The CCJ had also noted that the Recount Order “relates only to the Elections held on 2 March 2020” and it was specifically introduced to cater for the various disputes and contentions that arose after polling day and specifically after the March 13th Declaration.

The intention, of the recount, the Court noted, was to provide an open, transparent, and accountable recount of all the votes cast in those elections.

Clause 14 of the Recount Order provided that the Commission can make the declaration from the final credible count of the results.

Therefore, it was argued the GECOM Chair correctly found that the declarations made before the recount had to be set aside and were replaced by the tabulation of the votes at the recount process which the CCJ described as a transparent and credible process.

Justice Singh, through her attorney, argued that Lowenfield cannot go off on a “frolic” of his own and put himself above GECOM, the laws of Guyana and even the Constitution.

Senior Counsel Neil Boston, Attorney for the Chief Elections Officer, argued that since Lowenfield, on March 13, presented a report of the declarations made in all ten regions, the GECOM chair must use that to declare the results and nothing else.

Lowenfield’s March 13 report contains the declaration of District Four Returning Officer Clairmont Mingo. That March 13 declaration closely mirrors that which declared on March 6.

That March 6 declaration was thrown out by the High Court because the Chief Justice had ruled that Mingo did not follow the law in tabulating the vote count for his District.

But Boston argued that the March 13 declaration should stand because it was made before the order for the national vote recount was made.

He said that the March 13 report by Lowenfield should stand because GECOM could not have undertaken the recount lawfully because the recount aimed to address difficulties with the electoral process.

“It is respectfully submitted that GECOM cannot by subsidiary legislation (the recount order) give itself the power to resolve elections disputes that arise in the course of an election which said disputes the Constitution has placed in the exclusive jurisdiction of the Election Court,” Boston submitted to the court.

Kyte-Thomas disagreed. She noted that the March 13, 2020 declarations were replaced by the final credible count of ballots arrived at through the recount process and the CCJ did not determine that a final credible count could not be established neither did it set aside the recount order.

The intent of Order 60 was to determine the final credible count by recounting all ballots cast on 2nd March 2020 from the boxes, she stated, and Clause 14 of the recount Order provides that the Commission can make the declaration from the final credible count of the results.

“Hence it is respectfully submitted that the decision of the Chairperson and GECOM that the results of March 13 declaration cannot be used since they were replaced by the tabulation of the votes at the recount process which was hailed by all to be a transparent and credible process is in keeping with the decision of Guyana’s final court…,” Kyte-Thomas stated.

She further quoted the recent judgment of the CCJ, when the Court’s president, Justice Adrian Saunders said: “Unless and until an election court decides otherwise, the votes already counted by the recount process as valid votes are incapable of being declared invalid by any person or authority.”

As such, Kyte-Thomas argued that “it is pellucidly clear” that the CCJ concluded that the valid votes which were recounted must be used and it follows therefore that the recount tabulations have replaced the declarations contained in Lowenfield’s report of March 13.

Further, Kyte-Thomas argued that Guyana’s constitution and electoral laws never contemplated that the Chief Elections Officer would be a power unto his own and dictate to GECOM.

She explained that that the Recount Order dictated that once all the Statements of Recount were tabulated, the supervisor for tabulation was to ascertain and verify the entries therein and calculate totals, again in the presence of various personnel.

This ascertained and verified matrix, she said was to be signed by the District Coordinator for the District and the signed matrix was to be transmitted to Lowenfield, whose responsibility it was to tabulate the matrices of the ten electoral districts and submit to the Commission a report together with a summary of observation reports for each District.

She further explained GECOM would deliberate on this report and then determine whether it would request the CEO to use the data compiled as the basis for the submission of a report.

And the Commission, through its Chair, has already directed that the CEO use the data compiled from the recount to prepare his report. But he has defied the clear instructions he received and handed in a report from March 13.

Kyte-Thomas, arguing for the GECOM Chair, stated that the Chief Elections Officer is a statutory officer subject to the disciplinary control of the Commission and that Article 161 (1) A, Section 2 of ROPA and Section 18 of the Election Laws (Amendment) Act of 2000 bear this out.

As such, he has to abide by the direction he receives.

Justice Singh had argued that the court could not enquire into whether any function of the Elections Commission or of any of its members has been performed validly or at all except by way of an election petition provided for under the exclusive jurisdiction of the High Court by way of an election petition.

Section140(1) of the Elections Law Amendment Act states that “… no question whether any function of the Elections Commission or of any of its members has been performed validly or at all shall be enquired into in any court.”