Harmon to CCJ: Court of Appeal said nothing about any criteria for Lowenfield to determine valid votes

After supporting the report from Keith Lowenfield, the country’s Chief Elections Officer who discarded over 115,000 votes to calculate a victory for APNU+AFC at the March 02 elections, the Coalition’s Campaign Manager Joseph Harmon now says Lowenfield could not depend, as he claimed, on last Monday’s ruling of the Court of Appeal.

“…the Court of Appeal made no determination as to whether the votes cast were valid or not, and, imposed no criteria by which the validity of votes would be determined,” Harmon said in a written submission to the Caribbean Court of Justice (CCJ) by his Trinidadian attorneys Reginal T.A. Armour and Raphael Ajodha.

Article 177 (2) of the Constitution basically dictates that the party with the most votes cast wins the elections and the Court of Appeal in a 2-1 decision sought to interpret that to mean it would have to be the party with the most “valid” votes that wins the elections.

It gave no further directions or orders. Further, its decision is on hold as parties have appealed the decision to the CCJ.

But a day after the Court of Appeal decision, Lowenfield submitted a report that was starkly different from his original report of the results of a national vote recount and said that he was basing his decision on guidance from the Court of Appeal judgment.

In so doing, Lowenfield took it upon himself to decide what votes are valid and fixed his report accordingly to give APNU+AFC a victory. It is a report Harmon accepted.

But in written submissions to the CCJ, Harmon’s attorneys noted that the Court of Appeal “did not purport by its Order to determine the validity of an election nor of votes cast in respect of an election.”

They added: “Rather, the Court of Appeal determined, solely, a question as to the validity of an election of a President insofar as that question concerned the interpretation of the Constitution and no more.

“In other words, the Court of Appeal made no determination as to whether the votes cast were valid or not and imposed no criteria by which the validity of votes would be determined.”

Harmon’s attorneys pointed out that the Court of Appeal simply exercised its jurisdiction in a limited manner to interpret Article 177(2) (b) of the Constitution to mean “more ‘valid’ votes are cast…” instead of just “more votes are cast.”

“Simply put, the effect of the Court of Appeal’s decision is that the election of a President will be determined on the basis of valid votes in accordance with the law.

“The determination of what constituted valid votes was not a matter that the Court of Appeal, properly, purported to exercise jurisdiction over…,” Harmon’s attorneys stated.

In preparing his new report, Lowenfield disobeyed the clear instructions of the Chair of the Elections Commission, retired judge Claudette Singh.

Lowenfield had already prepared a report from the recount which showed the total valid votes cast in the elections. That report was based on ten certificates of the national vote recount which were all signed off as valid by GECOM’s district supervisors who were under Lowenfield’s control and direction.

Justice Singh specifically told Lowenfield to use those results and prepare a report, which he is required to by law, calculating how many seats each party would be entitled to.

Using the system of proportional representation and the largest remainder method, the PPP should have received 33 seats, APNU+AFC should have received 31 seats and three parties which joined their lists – ANUG, LJP and TNM – should have received one seat to complete the 65-seat National Assembly.

But Lowenfield’s latest report flipped the figures to give APNU+AFC 33 seats and give the PPP 31 seats. Lowenfield has not explained how he came up with his latest figures and Justice Singh has not said what she will do with his report.

There have been calls for Lowenfield to be dismissed or be suspended from having anything further to do with the elections process.

“Mr. Lowenfield’s public declaration of his independence, orchestrated and/or supported by APNU+AFC, indicates that he is not going anywhere.

“He’s a runaway train,” said Ralph Ramkarran, former Speaker of the National Assembly.

“The Chair of the Elections Commission will, sooner or later, have to take a stand – either dismiss Mr. Lowenfield or ignore him – if she wants to claim her and Guyana’s finest hour,” Ramkarran wrote for his blog Conversation Tree.