Chief Justice Roxane George Tuesday heard a case filed by private citizen Reeaz Hollader, backed by attorneys from the opposition PPP, that the Region Four Returning Officer breached the country’s electoral laws when he Thursday last declared the unverified vote count for the country’s largest voting district. She will give her ruling Wednesday at 14:00hrs.
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.
Region Four had 879 polling stations but the Returning Officer only allowed others to be present for the tabulation of 421 Statements of Poll and aborted the process after.
He then declared 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.
Six affidavits were presented in the case, namely from John Adams, Aubrey Norton, the Returning Officer Clairmont Mingo, the Deputy Chief Elections Officer Roxanne Meyers, and attorneys-at-law James Bond and Nicola Trotman.
According to Senior Counsel Douglas Mendes, representing Hollander, the affidavits of Meyers, Bond and Trotman all agree that the process described in law was suspended sometime on the evening of Wednesday, March 4, and it was to resume the following day.
He added that neither Meyers, Bond nor Trotman dispute that only 421 of the Statements of Poll had been verified or ascertained in the presence of party agents and that the other Statements of Poll were not examined in the same way.
The Returning Officer swore to the court that at around 11:00 a.m. on Wednesday he began feeling unwell and went upstairs and instructed Senior Clerk Michelle Miller to continue the process. He said that he had to be rushed to the hospital, but again, left Miller in charge.
He said that by that evening, Miller, along with others, inputted information, purportedly from the Statements of Poll, into the computer and then produced a spreadsheet. That information was then used by Mr Mingo to produce a tabulation which he then declared on Thursday at around 2 p.m.
However, the Deputy Chief Elections Officer in her evidence said that sometime on Wednesday the use of the spreadsheets was discontinued, and the process was reverted to verification from the Statements of Poll; it was later suspended and was to resume on Thursday.
Mendes stated that whoever did the arithmetic did not do so from the Statements of Poll, but the Chief Justice did not entertain the argument, preferring to stick to the narrow case of whether the verification process was done.
Mendes also argued that it is the responsibility of the Returning Officer to do the adding up, but that he can appoint other elections officers. In this case, he said, Ms Miller was a senior clerk and not an elections officer and so she could not have been used or designated by the Returning Officer.
He said that if the legal process is not followed, it could lead to mistrust, suspicion and lack of confidence in results declared and so there should be no reason why the court should not order to set aside the declaration of the Returning Officer.
The Judge wanted to know what provides for verification/reconciliation. Mendes explained that the Returning Officer would produce original SOPs and representatives would have copies and would be able to reconcile with what they have.
The Judge then asked if the Returning Officer is to get into fending and proving with the others, or whether he should rely on the Statements that he has. She was trying to determine the role of the other persons who are entitled to be present.
Senior Counsel Neil Boston, representing Mr Mingo, argued that the Returning Officer can adopt whatever methodology he decides he will pursue to come up with the results.
Boston said the Returning Officer can sit with the persons who are entitled to be there and he will go through the Statements of Poll or he can prepare a spreadsheet from the Statements he has and thereafter declare what the amount of votes received by each party.
Boston argued that the Returning Officer is duty-bound to rely on the Statements of Poll which were remitted to him from the various polling places.
According to Boston, the Returning Officer does not have to go through a period of resolving discrepancies that arise in relation to the Statements of Polls.
He said resolving any dispute is provided for after a declaration of the count is made, with Section 84 (2) providing for a recount.
Boston said there is evidence from Mr Mingo that he declared the votes that went to each party from the Statements sent to him and that there is no evidence he did not do the final count before the declaration was made.
Boston argued that Mr Mingo said the senior officer inputted the data from the various Statements of Poll, but there is no evidence that she, and not him, counted the Statements that led to the declaration that he made.
The Judge remarked that Mr Mingo should have said so in his affidavit but Boston argued that even if Mr Mingo did not expressly say so, the Court would have to accept presumption of regularity, meaning that he did the count.
Boston further argued that even if Mr Mingo did not expressly say so, it does not negative the fact that he didn’t do it.
Even if he has not complied by doing a count in the presence of persons who are entitled to be there, if does not invalidate what was done nor does it invalidate the declaration made by him, Boston stated.
Boston argued that the Returning Officer complied substantially but the Chief Justice noted that over half of the Statements of Poll were not checked as the others.
Boston argued that substantial performance has to do with his act of moving the process forward and not the amount of Statements of Poll verified.
The Judge wanted to know what is the purpose of the provision for persons to be there; Boston said it presupposes that things are going to be going smoothly and allow a rational interaction with the Returning Officer and the representative as counting agents and it turns out to be an irrational interaction, a “bacchanal.”
The Chief Justice said that there doesn’t seem to have been any uniform methodology in all regions as to how 84 (1) was to be applied.
When the vote count for nine regions had been verified and declared, 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.
The PPP said the figures were doctored.
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.
The law states that the Returning Officer shall, “in the presence of such of the persons entitled” to be there ascertain the total votes cast in favour of the parties.
Section 86 (1) lists the persons who shall be present at the counting of the votes.
These persons include:
(A) The Returning Officer, and such other Elections Officer appointed by him
(B) The Elections Commission
(C) Duly appointed Candidates
(D) Counting Agents
(E) Such other persons, as in the opinion of the Returning Officer, have good reason to be present.
Returning Officers for nine of the ten electoral districts had party agents and local and foreign observers present.
This was not done by Mingo. Neither candidates of the Opposition PPP nor observers were present when the votes for District Four were declared.
