Court of Appeal rules that ‘valid’ votes must be used to determine elections results
The Court of Appeal Monday afternoon ruled that in determining the results of the elections, the country’s Chief Elections Officer, Keith Lowenfield, must do so based on who received the most “valid” votes.
But the Court did not block the Elections Commission from carrying out its work and granted a three-day stay of the order in which it inserted the word “valid” in the Constitution.
The Chief Elections Officer in his report of the national vote recount showed the totals for the ten electoral districts which were signed off by GECOM’s own staff as being valid; when added up, Lowenfield’s report shows the Opposition People’s Progressive Party (PPP) winning the elections by 15, 416 votes.
But his report also showed how many votes would be affected if the votes in the boxes which APNU+AFC called into question during the recount were to be discounted.
But the CEO had noted that he could not ascertain whether the elections process was credible.
The ruling follows an application by Sophia, Georgetown resident Eslyn David, for a declaration that GECOM had failed to act in accordance with the terms of the recount order to determine a final credible count of the March 02 elections. The Court did not grant that declaration.
However, she also wanted an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution of Guyana, namely a declaration that more votes cast should be construed to mean more “valid” votes cast.
The Court’s decision was 2-1, with Justices Dawn Gregory-Barnes and Brassington Reynolds agreeing.
The dissenting judge, Rishi Persaud, had agreed with counter-arguments that the Court of Appeal was the wrong court to approach to settle questions about the credibility of the elections and he held that any such questions must be answered through an elections petition at the High Court and only if there is a difficulty with the decision there can the matter then be brought to the Court of Appeal.
Justice Dawn Gregory-Barnes, the President of the Court, and Justice Brassington Reynolds disagreed.
Justice Reynolds concluded that Article 177 (4) established a separate exclusive jurisdiction to hear matters regarding the qualification of any person for the Office of President or the interpretation of the Constitution on such matters.
He said that while the Constitution and the country’s electoral laws provide for the High Court to answer questions regarding the validity of the elections, absolutely no provision is made in these to determine questions of the qualification of a President and so it must be dealt with in the Court of Appeal.
Regarding orders, Reynolds agreed that no injunctive relief could be granted and the Court was clear that it could not determine whether Lowenfield’s report is valid or not.
Article 177 (2) points out that if they’re more than one parties contesting the elections, the presidential candidate for the party with more votes cast would be deemed the President-elect, but Reynolds ordered that the words more votes cast in Article 177 (2) (b) should be interpreted to mean more “valid” votes cast within the meaning of the recount order.
The ruling could lead to a showdown at GECOM because three of the Commissioners and the GECOM Chair had pronounced that the Chief Elections Officer could not decide for himself on the credibility of the process by simply taking allegations of APNU+AFC without any evidence to back up their claims. The objections to their claims made by other parties were not recorded and therefore did not form part of Lowenfield’s report.
The Chief Elections Officer, in buying the claims of the Coalition APNU+AFC, submitted a report to show how many votes would be affected if the votes in the boxes which APNU called into question during the recount were to be discounted.
When he did a subtraction, all the valid votes he counted would amount to just 185,260. By doing that he would be dumping 275, 035 votes, handing APNU+AFC a victory with 125, 010 votes, and leaving PPP with just 56,628 votes.
The recount showed a total of 460, 295 votes were cast and the high-level CARICOM team which was called in to serve as the scrutineers of the process agreed. The CARICOM team also agreed that the results of the recount which certified the valid votes 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.
During the recount, the votes were certified as valid and signed off by ten of GECOM’s supervisors.
The Court of Appeal did not agree with the argument that it only had the power to determine questions regarding the qualifications of a President and since the elections are not yet over and no President yet elected, the proceedings brought by the Coalition supporter was premature.
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, who had called for the elections to be scrapped.
Chair of the Guyana Elections Commission, Justice Claudette Singh in her affidavit had 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.
The GECOM chair, in her affidavit, had noted that “the Commission cannot arrogate onto itself a jurisdiction to determine the credibility an election.”
“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.
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 scrutineers 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 did not have the authority to grant orders restraining the Chief Elections Officer from carrying out his statutory duties as directed by the Chair of GECOM.