Court of Appeal rules Monday in case seeking to block declaration of results from vote recount

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The Court of Appeal will Monday afternoon rule in the case seeking to force the Guyana Elections Commission (GECOM) to determine the credibility of the March 02 elections before asking the Chief Elections Officer, Keith Lowenfield, to submit the results of the recount which will lead to a declaration of the PPP as the winner and the subsequent swearing-in of Irfaan Ali as President.

The ruling is set for 13:30h.

Attorneys for Ali, the Chair of GECOM, the Opposition Leader Bharrat Jagdeo and representatives of five other political parties which contested the elections argued Saturday that the Court should throw out the case because it has no powers to determine such matters.

They argued that the Court of Appeal only has exclusive jurisdiction to hear and determine questions regarding the validity of an election of a President and since the elections are not yet over and no President yet been elected, the proceedings are premature. The conclusion of their arguments was that the applicant has come to the wrong court at the wrong time.

Exactly one week ago, Lowenfield submitted his initial report on the national vote recount, which clearly established that the PPP had beaten the APNU by 15, 416 votes.

But Lowenfield, in presenting his report, laid down several unsubstantiated allegations which were made by the incumbent APNU+AFC Coalition.

He called into question scores of ballot boxes because of missing documents and irregularities and included allegations by the Coalition that the names of dead persons and persons who were not in the country voted on March 02.

So, what he did was to present a report to show how many votes would be affected if the votes in the boxes under question were to be cancelled out of the tabulation.

When he did a subtraction, all the valid votes he counted would amount to just 185,260. By doing that he discarded 275, 035 votes because the recount has shown that a total of 460, 295 votes were cast.

Of the number of votes Lowenfield said had no questions about them, he determined 125,010 would go to APNU+AFC and make them the winner of the elections.

For the PPP, it would mean them having just 56,628 votes.

But the votes certified as valid during the recount show the PPP winning the election with 233,336 votes while APNU+AFC secured second place with 217, 920 votes. Together the other parties secured 9,096 votes.

The applicant, Eslyn David, has sought a declaration that GECOM has failed to act in accordance with the terms of the recount order to determine a final credible count and or the credibility of the result of the March 02 elections.

She also wants an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution of Guyana.

Further, she wants the Court to prevent Lowenfield from complying with the Direction of the GECOM Chair to submit his report of the results of the recount without determining the credibility of the elections.

David’s application was filed pursuant to Article 177 (4) of the Constitution of Guyana.  Article 177(4) provides: “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution….”

David’s application was supported by Attorney General Basil Williams, but the applicant’s attorney parted ways with the Attorney General who called for an annulment of the elections.

Chair of the Guyana Elections Commission, Justice Claudette Singh, in her affidavit, argued that when one reads the entire Article 177, the Article contemplates a person already declared by GECOM as President.

“It is respectfully submitted that the electoral process has not reached this stage,” she stated.

She said the first two orders sought to seek a Declaration that GECOM failed to act in accordance with its order to determine the credibility of the elections do not touch and concern the qualification of a person elected President.

“It is respectfully submitted that the application is misconceived and ought to be struck out forthwith,” the GECOM Chair states in her affidavit, which was submitted by her attorney Kim Kyte.

In any event, Justice Singh said the Order sought by the applicant amounts to the interpretation of an Order and not the Constitution.

Justice Brassington Reynolds, one of three judges hearing the case, asked Ms Kyte whether she agreed that one of the objectives of the Recount Order specifies the need to establish the credibility of the Elections.

She agreed but said it is not for the Court of Appeal to interpret the Order since it can only interpret the Constitution. She repeated that questions regarding the credibility of the elections must be answered through an elections petition in the High Court.

Senior Counsel John Jeremie, for the applicant, said what is being asked of the Court of Appeal is for it to interpret the Constitution to say whether certain words in the Constitution “more votes cast” can be construed as more “valid votes” cast.

In written arguments for Opposition Leader Bharrat Jagdeo, Senior Counsel Douglas Mendes and former Attorney General Anil Nandlall said the applicant wishes to have a determination that the recount and the entire electoral process is invalid for the reasons given in the complaints made by the Coalition APNU+AFC.

Attorneys representing the PPP: Douglas Mendes, SC from T&T and former AG, Anil Nandlall [Photo: Bibi Khatoon/News Room]
Those complaints include allegations of persons voting who were dead or had migrated and of missing election documents. For these reasons, it is said that the election was not credible and the recount should not be acted upon.

Mendes and Nandlall argued that these are precisely the types of questions which the election court is given exclusive jurisdiction to determine under Article 163; they are not questions which the Court of Appeal is to determine under Article 177(4).

The GECOM chair, in her affidavit, noted that “the Commission cannot arrogate onto itself a jurisdiction to determine the credibility an election.”

She said the court should not be asked to act in vain.

“Even if the court grants the orders sought, what is the next position? Can this court direct GECOM what to decide? Can this court order GECOM to hold a fresh election? Are these orders even sought? The short answer is no since this is not an election court,” Justice Singh’s affidavits state.

She argued that the forum of the elections court is the appropriate place to assess the evidence to determine if it has crossed the threshold of sufficiency to vitiate the 2020 Election and GECOM does not have that jurisdiction.

“For the reasons advanced above the Notice of Motion should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions to bring finality to the 2020 Elections,” Justice Singh stated.

In arguments for the three parties which joined their lists ahead of the elections – LJP, ANUG and TNM, Senior Counsel Ralph Ramkarran argued that the Chief Election Officer exceeded his mandate and acted unlawfully when he took it upon himself to consider the allegations and determined that he could not ascertain whether the results would be credible.

Ramkarran pointed to report of the High-Level CARICOM team, which served as the scrutineer of the recount, which said while there were some questions about the process, there was nothing preventing GECOM from declaring the results as it represented the will of the people.

He said that if the Attorney General wants the allegations of APNU and chronicled by Lowenfield in his report considered, then the report of the CARICOM team should also be considered since the submission of the report was required by the legal recount order.

The CARICOM report regarded the claims of the names of dead and migrant persons being marked off as having voted as a fishing expedition.

In his affidavit in answer, Shazaam Ally of The Citizenship Initiative, through attorney Khashir Khan, made similar arguments, contending that the Court of Appeal has no authority to grant orders restraining the Chief Elections Officer from carrying out his statutory duties as directed by the Chair of GECOM.

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