Court of Appeal upholds recount
The Guyana Court of Appeal on Thursday upheld the decision of Chief Justice Roxane George that the national vote recount is valid and that the Chief Elections Officer, as an employee of GECOM, must do as he is told.
The appeal was dismissed as being frivolous and vexatious and further abuse of the Court.
The judgment paves the way for GECOM Chair Justice Claudette Singh to call a meeting of the Commission to decide on the way forward. The Chief Elections Officer Keith Lowenfield has refused to comply with the orders of Justice Singh to prepare an elections report based on the recount.
The President of the court, Justice Dawn Gregory-Barnes, said the High Court properly has supervisory powers to ensure the elections process is protected and that GECOM and its functionaries operate lawfully.
The attorneys for the applicant, led by Roysdale Forde, requested a three-day stay of the ruling of the Court but the application was denied. Two of the three judges granted a one day stay.
Attorneys for respondents in the case had argued against it, saying no orders were granted by the Court and so there is nothing to stay.
Kim Kyte-Thomas, Attorney for the GECOM Chair argued against a stay of the ruling saying it was untenable and GECOM must be allowed to complete its work.
Attorney Timothy Jonas argued that since the case was ruled to be an abuse of the process of the court, there can be no stay.
But two of the judges ultimately agreed to allow a one-day stay.
The President of the court, Justice Gregory-Barnes noted that GECOM undertook the recount to establish a credible count after several parties objected to the District Four tabulation as being fraudulent. She ruled that there is no basis of questioning the constitutionality of the recount order.
Justice Gregory-Barnes noted that the Caribbean Court of Justice (CCJ) in its July 08 judgment correctly ruled that the Recount Order formed part of the country’s electoral laws for these elections and as such cannot be challenged unless by way of an elections petition.
According to the Constitution, Justice Singh makes a declaration of the results of the elections after the Chief Elections Officer presents his advice.
Justice Priya Sewnarine-Beharry said it is disingenuous for the Chief Elections Officer to want to prepare a report based on declarations made before the recount.
Justice Sewnarine-Beharry ruled that GECOM was correct to set aside the declarations before the recount and if anyone wants to challenge what GECOM did then they must fight that battle by way of an elections petition after the results of the recount are declared.
She ruled that GECOM was lawfully empowered to undertake the recount and as such it follows that declarations of the votes counted in all districts before the recount are no longer in play since they were overtaken by the recount.
In her judgment, Justice Gregory-Barnes agreed that the function of the Chief Elections Officer is based on the administrative system for the presentation of the election results.
The system is that the Presiding Officers count the votes at the place of poll, and then send their reports to the Returning Officers. The Returning Officers then send their reports to the Chief Elections Officer who then tabulates the ten reports and presents that advice to GECOM.
In this case, she said the recount took place at one location and there should be “no difficulty” for the Chief Elections Officer to prepare his report as requested by GECOM.
In his judgment, Justice Rishi Persaud stated that though GECOM must act on the advice of GECOM, his advice must be lawful and any other advice that he gives outside of the recount would be absurd. And since the recount was lawful, Justice Persaud ruled that the Chief Elections Officer is duty-bound to provide advice based on the recount as directed by the Chair of GECOM.
Justice Persaud ruled that the Chief Elections Officer is an employee and has no discretionary power or authority and must perform his duties under the direction of GECOM.
The Court ruled that GECOM was lawfully empowered to undertake the recount and as such it follows that declarations of the votes counted in all districts before the recount are no longer in play since they were overtaken by the recount.
The judges relied on the judgment of the CCJ that “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 other than the High Court through an election petition.”
All of the judges agreed that the main issues raised were all dealt with before.