By Kurt Campbell
As oral arguments commenced on Wednesday in relation to the election petition (88/20-P) filed by agents of the APNU+AFC Coalition, the Guyana Elections Commission (GECOM) stood by its August 2, 2020 declaration, emanating from the recount process, which declared that the People’s Progressive Party Civic (PPP/C) were the true winners of the March 02, 2020 general and regional elections and that Dr Irfaan Ali, as leader of the party’s list, is the legitimate President.
Through its attorney, Dominican Senior Counsel (SC), Anthony Astaphan, GECOM was bold in its rejection of submissions by petitioners, Claudette Thorne and Heston Bostwick, that Section 22 of the Election Laws (Amendment) Act is unconstitutional and that Order No. 60 of 2020 is invalid, null, void, and of no effect.
With Order No. 60 of 2020 created by virtue of Article 162 (1) (b) of the Constitution and Section 22 of the Election Laws (Amendment) Act to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count, Astaphan told the Court of Chief Justice (ag), Roxane George, that: “We are not conceding any breach [of the Constitution] at all.”
He reasoned that the petitioners, who are being represented by a battery of lawyers headed by Trinidadian Senior Counsel, John Jeremie, needed to prove total non-compliance with the law, he (Astaphan) believes they have not done in their written or oral submissions.
“There was no breach. Section 22 got its constitutional authority and genesis from the Constitution… Order 60 is entirely consistent with the Constitution also and the purpose was transparent, enacted in good faith and intended to remove the difficulties to allow for a declaration,” the GECOM attorney argued.
Astaphan said he could not legally agree with the petitioners’ pleading, which is premised on the unlawfulness of Section 22 that because of its argued unconstitutionality, Order No. 60 fell by the wayside.
Referencing Article 162 (1) (b) of the Constitution of Guyana, Astaphan said: “The Acts of Parliament must be read subject to the overriding powers of the Constitution which give GECOM discretion on how the law was to be applied to allow for fair, impartial interpretation of the law.”
The petitioners also relied on Article 162 (1) (b) of the Constitution when they submitted that, generally, the March 02, 2020 elections were lawfully conducted but difficulties arose that GECOM was not empowered to resolve.
To this end, GECOM’s attorney argued that the elections body has the legal authority to act and, in so doing, set aside the initial declarations for the 10 districts and conducted a recount of the votes cast to pave the way for a final declaration of the results of the election.
“In the face of these difficulties what was GECOM to do? GECOM was obliged to act or else chaos would have enacted,” he said. Astaphan told the Court that the initial declarations were part and parcel of the difficulties GECOM faced.
The recount exposed that the declaration in District Four was reportedly doctored by the Returning Officer, Clairmont Mingo, to hand victory to the APNU+AFC Coalition.
“GECOM had the constitutional authority to conduct the recount. It was accepted across the board, except in a small political circle,” he added.
WAS IT A SHAM ELECTION?
Oral submissions were put forward by several other attorneys in the case, including Attorney-General and Minister of Legal Affairs, Anil Nandlall, SC, who is representing the State and Trinidadian Senior Counsel, Douglas Mendes, who is representing Bharrat Jagdeo, in his capacity as General-Secretary of the People’s Progressive Party.
The submissions by Nandlall and Mendes were not materially different from submissions made by Astaphan; they both argued on the lawfulness of the elections and the recount process.
Mendes, however, articulated that if the petitioners’ points, which were submitted to the court through their legal representation, were to stand, then one has to ask whether the election then was so unlawful it is now a sham election.
He said the recount was done under the explicit instructions from Guyana’s Court of Appeal.
“It seems to be disproportionate and excessive to ask a Court now to say that the election which occurred, that the counts of the ballots, which actually occurred pursuant to that process, is a sham. From all the authorities that we have seen, that is simply not open and for the petitioners to submit to this honourable court,” Mendes proferred.
But attorney Jeremie maintained that while there were indeed difficulties during the elections, those difficulties could not be resolved by GECOM and could only be resolved by an Election Court.
“It could not be in the remit of GECOM to arrogate to itself the power to resolve disputes and set aside declarations,” he added.
In addition, Jeremie also told the Court that if it finds Order No. 60 to be lawful, then the prescriptions set out in the Order were not followed.
“We are saying that Order 60 is not valid but even if it is found to be valid, they have not confirmed with the prescriptions of the Order.”
With the respondents relying on a Caribbean Court of Justice (CCJ) ruling which gave its blessing to Order 60 and the recount process, the petitioners have argued that the CCJ did not rule on its constitutionality per se.
The respondents have argued that even if GECOM failed to comply with the law then the Court must also be satisfied that it affected the outcome of the elections before the relief for a vitiation is granted.
RULING SET FOR APRIL 26, 2021
At the conclusion of oral submissions on Wednesday, the Chief Justice explained that while she had hoped to deliver her judgment within two weeks, based on the extensive discussions which lasted for almost four hours, she will need a little more time to compile her decision.
She has, however, set April 26, 2021, for a ruling with an indication that should more time be needed, all interested parties would be notified.
She thanked all Counsel for their participation and said it was “most helpful.”
The APNU+AFC filed its first elections petition (88/20-P) on August 31, 2020, officially challenging the outcome of the March 02, 2020 elections and the recount exercise from which the People’s Progressive Party Civic (PPP/C) emerged victorious.
A second petition (99/20-P) was filed subsequently on September 15, 2020, also challenging the March 02, 2020 elections. This petition has since been dismissed because former President, David Granger, was not served within the required five-day timeline, and he has been found to be a necessary party in the proceedings. An appeal is pending.
The petitioners want the court to declare that the elections were so badly held that the results from it cannot be deemed to be the will of the people. At the same time, they want the court to have David Granger declared as President under those very elections they claim were conducted against the electoral laws and constitution of the country.
The petitioners contend that the Chief Elections Officer was not required to use the data from the national vote recount to produce his elections report from which the results were declared.
