Court of Appeal rules Thursday in elections case

The Guyana Court of Appeal will rule Thursday at 11:00 h in the case brought before it seeking to throw out the national vote recount and compel the Guyana Elections Commission (GECOM) to act on the report presented by the Chief Elections Officer even though parties argue that his report was prepared using the fraudulent vote count in District Four.

Attorney Timothy Jonas, representing Josh Kanhai of The New Movement (TNM), submitted that contrary to what the applicant Misenga Jones is arguing, GECOM cannot blindly accept a fraudulent act by one of its officials and pretend it never happened.

Were that to be the case, GECOM, Jonas stated, would then necessarily be facilitating an erroneous election.

He said that the argument that GECOM must give its stamp of approval to proven illegality runs contrary to every principle of law.

As such, he argued that GECOM acted to correct its employee when it ordered him to present a reported based on the numbers from the recount after he initially presented a report with alternative numbers.

Attorney Sanjeev Datadin, for Dr Vishnu Bandhu of the United Republic Party (URP), argued that while GECOM must act on the advice of the Chief Elections Officer, the advice must come from figures which are lawfully generated and not numbers the Chief Elections Officer comes up with on his own.

According to the elections laws, the report of the results of the elections comes from the ten declarations made by the Returning Officers in their districts. But those reports were set aside because GECOM decided on a recount and the Chief Elections Officer himself replaced the Returning Officers with District Supervisors.

So the advice that the Chief Elections Officer gives to the Commission must be based on the figures from the District Supervisors of the recount process.

Senior Counsel Ralph Ramkarran, for Lenox Shuman of the Liberty and Justice Party (LJP), argued that GECOM can act to ensure the Chief Elections Officer presents the correct results when they find that he is incorrect.

He cited the case in 2011 when the PPP was being assigned one seat more than they were entitled, GECOM acted to make the correction.

Kim-Kyte Thomas, attorney for Justice (rt’d) Claudette Singh, Chair of GECOM, said that if the Court of Appeal were to order the use of the elections report prepared by the Chief Elections Officer using figures other than that generated in the recount would be to allow itself to be used to help with the perpetuation of electoral fraud in Guyana.

Kyte-Thomas, in oral arguments, contended that what the applicant is asking the Courts to do is to aid and abet a series of illegalities which led to the March 13 declaration in District Four and the preparation of a report by the Chief Elections Officer for a declaration of the results of the elections to be made.

She said the Court can act to ensure that an officer does not commit certain illegalities. Even when the High Court had ruled that the Returning Officer in District Four had acted unlawfully in making his first declaration and thus voided it, he still attempted to make declarations in breach of the Court’s order, acting outside of the clear provisions of electoral statutes.

And it was in the midst of all that, Kyte-Thomas stated, that GECOM had to step in to ensure its officer acts lawfully and determined a recount was needed to establish a credible count.

But the applicant wants the Court to set aside and remove the tabulations from the national recount when the country’s highest court – the Caribbean Court of Justice (CCJ) – has already ruled that the recount was transparent and no other results stand.

What the applicant wants is for the declaration of March 13, deemed fraudulent, to be used.

Kyte-Thomas called on the Court of Appeal not to allow itself to be used as an instrument to perpetuate that fraud.

Kyte-Thomas declared that the Chief Elections Officer must comply with the directions he was given by GECOM to use the results of the national recount to prepare a report which would be used to make a declaration.

Attorney General Basil Williams cited Article 177 (2) (b) where it states there are two or more presidential candidates, the one to whom more votes are cast shall be deemed elected as president and shall so be declared by the Chairman of the Elections Commission “acting only” after such advice has been tendered to the elections commission at a duly summoned meeting.

The Attorney General argued that the requirements of Article 177 (2) (b) are mandatory as the words “shall” and “acting only in accordance with” are used.

He contended that the words “acting only in accordance with the advice of the Chief Elections Officer” are deliberate and clear and must be given its true meaning.

Senior Counsel Douglas Mendes, attorney for Opposition Leader Bharrat Jagdeo and PPP Presidential Candidate Irfaan Ali, argued that the Chief Elections Officer is an officer employed by GECOM and like any employee he is subject to the direction and control of his employer.

But more than that, Mendes argued that GECOM is empowered to remove and exercise disciplinary control over him and is specifically mandated by the Constitution to supervise him.

Mendes added that to remove all doubt, he is rendered by section 18 of the Elections Law (Amendment) Act subject to the direction and control of GECOM.

There is no provision in the Constitution or any other law which gives the CEO the power to direct GECOM.

Indeed, by Article 226(1) of the Constitution, GECOM is not to be subject to the direction or control of anyone, Mendes added.

The recount shows the PPP won the elections but the applicant wants the previous declarations, including the fraudulent District Four declaration, to be used to swear in her President, David Granger.