Court of Appeal case brings Elections 2020 closer to finality; possible sanctions still loom

With the Court of Appeal set to deliver its ruling in the case seeking to force the Guyana Elections Commission (GECOM) to determine the credibility of the March 2 elections, Guyana could be one step closer to seeing the People’s Progressive Party (PPP) being declared the legitimate winner and its candidate Irfaan Ali becoming the country’s ninth President.

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 elections.

She also wants an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution of Guyana. The ruling is fixed for 13:30h Monday.

Potentially, that ruling could decide the fate of the country as it relates to the threats of sanctions. It has been over 100 days since Guyanese went to the polls.

United States Secretary of State Mike Pompeo has consistently spoken about the need for a “free, fair, transparent and credible” process. It is understood that Guyana can face sanctions crippling the country’s economy and reputation if the elections are not declared in line with the results of the recount.

In March, the US had issued the following statement during the earlier court intervention: “Vote tabulation irregularities marred #Guyana’s March 2 elections. Our Ambassador and many observers saw flawed tabulation. Irrespective of today’s legal proceedings, any government sworn in on the basis of that result would not be legitimate,” Ambassador Michael Kozak, Acting Assistant Secretary of State for Western Hemisphere Affairs of the U.S. Department of State had tweeted.

This statement indicated early that the expectation was that the will of the people should be respected.

The process has been far from smooth, as numerous court battles and an entire recount exercise have delayed the declaration of a result that reflects the will of the people.

It is the general consensus this is a last-ditch effort by the incumbent to prevent a declaration that, based on the national recount, will see the PPP the winner of the elections by 15,416 votes.

On the eve of Saturday’s hearing, a recording surfaced with the governing APNU+AFC coalition’s Prime Ministerial candidate Khemraj Ramjattan conceding defeat in a statement to his staff.

Hours later, C.N. Sharma, the leader of the Justice for All Party, a member of the coalition, said Ali should be sworn in without delay and Dominic Gaskin, a leading executive in the Alliance for Change, and son-in-law of President David Granger said the Coalition fooled its supporters into believing it had won the election and should now level with their supporters and prepare to be a strong opposition.

The international observation missions have also been vocal about the need for a transparent process, while the incoming Chairman of the CARICOM Ralph Gonsalves and Prime Minister of Grenada Dr Keith Mitchell have also called for the declaration to be made on the recount numbers which clearly shows a PPP victory.

On Saturday, Attorneys for Ali, the Chair of GECOM Justice (Ret’d) Claudette Singh, the Opposition Leader Bharrat Jagdeo and representatives of five other political parties, which contested the elections argued 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.

Essentially, David wants the Court to prevent the Chief Elections Officer, Keith 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….”

Justice Singh, in her affidavit, argued that Article 177 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 stated 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.

“If GECOM is to embark on this credibility exercise what basis should be used to determine the issues of validity and credibility? The letters from one party? The opinion of the CEO? Can GECOM just use the CEO’s opinion without giving interested parties an opportunity to be heard? Is GECOM to hold court and take evidence? The Applicant is asking GECOM to embark on a trial,” she stated.

“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.

The question now is whether the matter could end up at the Caribbean Court of Justice (CCJ), an eventuality that would further extend the process. The contention that would be brought before the CCJ would simply be whether the Court of Appeal has jurisdiction to hear the matter under Article 177.

Some legal practitioners, who spoke to News Room, expressed concerns about the Court of Appeal’s ability to hear the matter.

Two of the three Court of Appeal Judges had ruled that 34 votes and not 33 in the 65-seat National Assembly are required as an absolute majority for the passage of a No-Confidence Motion.

That decision was subsequently overturned by the CCJ, which ruled that the No-Confidence Motion was properly passed with a vote of 33 members.