Lowenfield cannot go on ‘a frolic’ of his own; GECOM chair asks Court to throw out elections case

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Justice (rt’d) Claudette Singh, the Chairwoman of the Guyana Elections Commission (GECOM), has asked the High Court to throw out the case which seeks to stop her from declaring the results of a national vote recount and to instead only use figures concocted by the Chief Elections Officer Keith Lowenfield.

In arguments put to the Court Friday, Justice Singh, through her attorney Kim Kyte-Thomas argued that Lowenfield cannot go off on a “frolic” of his own and put himself above GECOM, the laws of Guyana and even the Constitution.

Justice Singh reasoned that it would be unthinkable that one man, an employee of GECOM, could be vested with such absolute and unchecked power.

The decision of the Chief Justice will determine if an elections report prepared by Lowenfield with the help of President David Granger’s disgraced APNU+AFC Coalition could be used to declare an elections results and prevent Irfaan Ali and the PPP from taking office or if Justice Singh can lawfully move ahead and have him sworn in.

The recount showed that the PPP scored 15, 416 votes more than that of APNU+AFC.

If the GECOM Chair is not allowed to use results from the recount, Guyana will face crippling sanctions by its key development partners – the United States, the United Kingdom, the European Union and Canada – and would be ostracised by key organisations such as the Commonwealth, the OAS and CARICOM.

The United States has already imposed visa sanctions against Ministers of Granger’s Coalition and senior officials of GECOM.

Attorney Kim Kyte-Thomas

Misenga Jones, an agent of Granger’s Coalition filed the case in the High Court on matters which have already been addressed and dismissed by the Caribbean Court of Justice (CCJ), Guyana’s final court of appeal.

And so, it tramples on the “res judicata” principle and should be thrown out, Justice Singh argued.

Jones wants the High Court to say that Lowenfield can basically use any number he chooses to present a report and Justice Singh and the Elections Commission she chairs, must accept it, and declare the results of the elections.

The basis for her argument, as outlined in the written submission by her attorney, Senior Counsel John Jeremie, is that Article 177 (2) dictates that the GECOM chair must act “only” on the advice of the Chief Elections Officer to declare the winner of the elections.

As such, he said the Chairperson is acting in breach of its constitutional and statutory powers in refusing to act on the basis of the report prepared by the Chief Elections Officer.

But Kyte-Thomas, a former Solicitor General, in her written submission, argued that Section 18 of the Election Laws (Amendment) Act of 2000 specifically provides that the Chief Elections Officer shall be subject to the direction and control of the Commission.

“Therefore, your Honour, in relation to the determination of election results, to construe the phrase, ‘acting only in accordance with the advice of the Chief Election Officer’ in Article 177 (2) (b) to mean that any report whatsoever that the CEO produces must be acceptable would be tantamount to elevating the CEO above the Commission, the Constitution and the Laws of Guyana.

“One man or woman cannot be vested with such absolute unchecked power. It is inconceivable that the framers of the constitution would have so intended,” Kyte-Thomas argued.

But Senior Counsel Neil Boston, Attorney for the Chief Elections Officer, argued that since Lowenfield, on March 13, presented a report of the declarations made in all ten regions, the GECOM chair must use that to declare the results and nothing else.

Lowenfield’s March 13 report contains the declaration of District Four Returning Officer Clairmont Mingo. That March 13 declaration closely mirrors that which declared on March 6.

That March 6 declaration was thrown out by the High Court because the Chief Justice had ruled that Mingo did not follow the law in tabulating the vote count for his District.

But Boston argued that the March 13 declaration should stand because it was made before the order for the national vote recount was made.

He said that the March 13 report by Lowenfield should stand because GECOM could not have undertaken the recount lawfully because the recount aimed to address difficulties with the electoral process.

“It is respectfully submitted that GECOM cannot by a subsidiary legislation (the recount order) give itself the power to resolve elections disputes that arise in the course of an election which said disputes the Constitution has placed in the exclusive jurisdiction of the Election Court,” Boston submitted to the court.

Kyte-Thomas disagreed. She noted that the March 13, 2020 declarations were replaced by the final credible count of ballots arrived at through the recount process and the CCJ did not determine that a final credible count could not be established neither did it set aside the recount order.

The intent of Order 60 was to determine the final credible count by recounting all ballots cast on 2nd March 2020 from the boxes, she stated, and Clause 14 of the recount Order provides that the Commission can make the declaration from the final credible count of the results.

“Hence it is respectfully submitted that the decision of the Chairperson and GECOM that the results of March 13 declaration cannot be used since they were replaced by the tabulation of the votes at the recount process which was hailed by all to be a transparent and credible process is in keeping with the decision of Guyana’s final court…,” Kyte-Thomas stated.

She further quoted the recent judgment of the CCJ, when the Court’s president, Justice Adrian Saunders said: “Unless and until an election court decides otherwise, the votes already counted by the recount process as valid votes are incapable of being declared invalid by any person or authority.”

As such, Kyte-Thomas argued that “it is pellucidly clear” that the CCJ concluded that the valid votes which were recounted must be used and it follows therefore that the recount tabulations have replaced the declarations contained in Lowenfield’s report of March 13.

Further, Kyte-Thomas argued that Guyana’s constitution and electoral laws never contemplated that the Chief Elections Officer would be a power unto his own and dictate to GECOM.

She explained that that the Recount Order dictated that once all the Statements of Recount were tabulated, the supervisor for tabulation was to ascertain and verify the entries therein and calculate totals, again in the presence of various personnel.

This ascertained and verified matrix, she said was to be signed by the District Coordinator for the District and the signed matrix was to be transmitted to Lowenfield, whose responsibility it was to tabulate the matrices of the ten electoral districts and submit to the Commission a report together with a summary of observation reports for each District.

She further explained GECOM would deliberate on this report and then determine whether it would request the CEO to use the data compiled as the basis for the submission of a report.

And the Commission, through its Chair, has already directed that the CEO use the data compiled from the recount to prepare his report. But he has defied the clear instructions he received and handed in a report from March 13.

Kyte-Thomas, arguing for the GECOM Chair, stated that the Chief Elections Officer is a statutory officer subject to the disciplinary control of the Commission and that Article 161 (1) A, Section 2 of ROPA and Section 18 of the Election Laws (Amendment) Act of 2000 bear this out.

As such, he has to abide by the direction he receives.

Kyte-Thomas argued that the issues raised in the application are res judicata since the said issues, just crafted differently, were ventilated and ruled upon in the said matters.

Representing the GECOM Chair, Kyte-Thomas contended that the matter should be dismissed on the grounds that it amounts to an abuse of the court’s process since the issues have all been ventilated and determined by courts of competent jurisdiction to so do.

Justice Singh urged the Court to reject the application “and the Commission should be permitted to execute its constitutional role and functions to bring finality to the March 2020 Elections.”

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