Chief Justice rules; injunction blocking declaration of elections results remains in force
Guyana’s Chief Justice on Sunday said a case has been made out that the head of Guyana’s largest electoral district had breached the electoral laws and she upheld an injunction blocking a declaration of a winner in the March 2 polls.
The Chief Justice, Roxane George, will begin hearing the case on March 10 and will thereafter have to decide whether to direct the Returning Officer for Region Four, Clairmont Mingo to go back to the verification process he started in the presence of international and local observers.
Region Four had 879 polling stations but the Returning Officer only allowed the verification process for 421 Statements of Poll and aborted the process after. He then certified the votes counted and handed it to the country’s Chief Elections Officer, who went ahead and prepared a final report of all ten electoral districts for the Guyana Elections Commission (GECOM) to declare a winner.
The Opposition PPP had won six of the nine regions and was 52,000 votes ahead.
But with the unverified report of Region Four, the APNU+AFC Coalition was put in the lead and on course to win the elections. But the Opposition PPP said the numbers produced by the Returning Officer does not match those it has and accused the electoral body of rigging the elections.
A citizen named Reeaz Hollader was granted an injunction by the High Court to block the declaration of the overall results of the elections until the matter is heard and determined.
Senior Counsel Neil Boston, Attorney for the Returning Officer, the Chief Elections Officer and GECOM had argued Saturday that the questions raised in the case are matters that need to be dealt with by an elections petition and that such a petition can only be made when the elections results are declared.
But the Chief Justice Sunday ruled that the Court can invoke is supervisory responsibility to ensure that the correct procedure is followed.
“A court cannot shirk its duty…and shelter behind the contention that an elections petition should be filed when the case clearly does not so warrant,” the Chief Justice stated.
Trinidadian Senior Counsel Douglas Mendes, representing Hollander, had argued that the case has nothing to do with the elections results, but that it has to do with the process leading up to the declaration of the elections results.
The results of the March 2 polls vote are not yet known, Douglas argued in court and said the case before the Court is essentially one of procedure that seeks to preserve the purity and transparency of the process.
As such, he reasoned that results from an illegal process could not be allowed to de declared and a president and new government sworn in based on that illegal process, and then a challenge is made.
The injunction against the declaration of the elections results was sought after Returning Officer Mingo last Thursday moved to declare the votes recorded for the parties in his region without it being verified by party agents and local and international observers.
The way the counting of the votes takes place is as follows:
(1) the votes cast at every polling station in an elections district are counted at the place of poll and a Statement of the votes counted would be produced;
(2) Deputy Returning Officers, who are responsible for a cluster of Polling Places in the District, would then collect all the Statements of Polls;
(3) All the Statements of Poll would then go to the Returning Officer who would then sign off on the votes counted in all the polling places, using the Statements of Poll.
In nine of ten electoral districts, Returning Officers have verified their Statements of Poll in the presence of party agents and local and international observers. The only district that did not follow this procedure to the end was District Four.
This process was only followed in verifying a fraction of Statements of Poll and then the process was abandoned.
Mr Anil Nandlall, one of the attorneys for the appellant in the case, had previously argued that the process of verification is referred to in the law as “counting of the votes polled” and is provided for by Section 84 (1) of the Representation of the People Act, Chapter 1:03.
Nandlall had pointed out that Mr Mingo had already determined that International Observers were among the persons, whom in his opinion, have a good reason to be present.
It was revealed Saturday night that the Chief Elections Officer had prepared his final report on the results of Monday’s elections and called for a meeting of GECOM to approve it; his report contains the unverified count of votes in Region Four.
The Chief Justice received an undertaking from Attorney Boston that GECOM would not act on the report of Lowenfield until the case is determined.
The CEO wrote the chair and Commissioners on Saturday night even though there is an injunction against the declaration of the results by the High Court.
Commissioners Sase Gunraj, Bibi Shadick and Robeson Benn on Saturday night reacted angrily to an email by Lowenfield that he had prepared a final report.
“These matters continue to engage the attention of the Chief Justice, Roxane George, sitting in the High Court.
“We consider this invitation to meet as a flagrant attempt to breach the Order of Court aforesaid and a naked attempt by the Chief Elections Officer, Keith Lowenfield, to suborn us to breach an Order of Court and exposing us to liability for contempt of Court,” the Commissioners stated.
They said that as holders of a constitutional offices, they are at all times obligated to obey the Constitution and other laws of Guyana “and we consider this invitation to meet as not only a violation of our duty to uphold the Constitution but also an invitation to subvert the course of justice.”
GECOM is split even, with three Commissioners representing the government and three representing the Opposition.
Three of the six Commissioners have said they will not attend any meeting as long as the court case is still active.
The Commission cannot meet if there is no quorum, which is defined in the Constitution as four Members and the Chairman. So, for any meeting to go on at least one PPP Commissioner has to be present.
But in the case for the declaration of the results, if a meeting is called and there is no quorum, the Chairperson will adjourn the meeting to the same time the following day and inform the absent members.
If at that meeting those who were absent for the original meeting do not show up, only the presence of four members, including the chair, is required and any decision made would be deemed valid in law and binding.
If the PPP Commissioners do show up to the meeting and both sides vote along party lines, it would mean that the Chair would have the deciding vote, leaving the ball in her court.
The CEO has only asked for a meeting; no date and time has been set just yet.
International governments, including the U.S., UK, Canada, and the EU, along with observers from the Commonwealth, the OAS, the EU and CARICOM, have all said that if the verification of the Region Four Statements of Poll are not completed, the elections results would not be credible. The U.S. State Department on Saturday night said the government would be illegitimate if the President is sworn in with unverified votes from Region Four.