Justice Claudette Singh, the chair of the Guyana Elections Commission (GECOM), on Wednesday declared that there will be no investigation of the 2020 general and regional elections by GECOM, saying it is outside of the Commission’s mandate to do so.
Justice Singh had been pressed by Opposition-nominated Commissioners to look into questions about the validity of votes and missing documents. But in a ruling she handed down to the Commission, Justice Singh said those are matters for a court and not GECOM.
She said it was important to distinguish between a review of GECOM’s processes in effectively conducting an election and an investigation into what actually transpired during a particular election.
She said GECOM can look into the effectiveness of the system that is in place to ensure that an election is carried out in accordance with the law to ascertain whether there are (potential) weaknesses in the system that need to be addressed.
But she said to investigate what actually transpired during the election is to determine the truth of particular claims, leading possibly to a determination of the validity of an election, and that Is something that GECOM is not empowered to do.
“GECOM is not a court of law and therefore, has no authority to determine whether an election was lawfully conducted, and no such power was conferred on it under Article 162 (1) (b),” she stated.
She determined that Articles 162 and 163 show that the Constitution clearly and sharply separates the functions of GECOM and the High Court respectively in matters of electoral laws.
“The Commission does not have, and cannot clothe itself with, the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein.
“Any such question can only be determined by way of an election petition filed in the High Court,” she stated.
Opposition Commissioners wanted GECOM to look into whether the names of persons who were dead or out of the country were crossed off as having voted. They also wanted GECOM to look into why documents were missing from some ballot boxes after polls closed and voting ended.
In relation to the first question, which is essentially an issue of the validity of votes, Justice Singh noted that Section 96 of the Representation of the People Act Cap 1:03 calls on the Chief Election Officer to calculate the total number of valid votes of electors which have been cast for each list candidate.
The term ‘valid votes’ received judicial interpretation from the highest court of Guyana the CCJ in paragraph [45] of the decision of Mohamed Irfaan Ali v Eslyn David, Justice Singh noted.
She quoted Justice Saunders, President of the Court, in stating that: “Validity in this context means, and could only mean, those votes that, ex facie, are valid. The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots. This is an exercise conducted in the presence of, inter alia, the duly appointed candidates and counting agents of contesting parties.
“It is after such invalid votes are weeded out that the remaining “valid votes” count towards a determination of not only the members of the National Assembly but, incidentally as well, the various listed Presidential candidates.
“If the integrity of a ballot, or the manner in which a vote was procured, is questioned beyond this validation exercise, say because of some fundamental irregularity such as those alleged by Mr Harmon, then that would be a matter that must be pursued through Article 163 after the elections have been concluded”.
Justice Singh concluded that although the Chief Immigration Officer submitted a list of names or persons who were alleged to have been out of the jurisdiction on Election Day but yet appeared to have voted, such information cannot be regarded as established facts but can only be tendered as evidence for determination by a court of law.
Such a court can determine the credibility of such information by calling witnesses and subjecting them to cross-examination, she said, and these witnesses would be no other than Immigration officers who would have to tender the Entry and Departure documents of those persons and also their identity must be ascertained from their travel documents.
“The most that GECOM can do in this regard is to examine its processes to see whether there are gaps or weaknesses in its processes that make it possible for votes to be counted for persons who could not have voted,” Justice Singh stated.
She said this requires no more than an examination of the processes currently employed in light of the claims made, and a determination of whether there is potential for such to have occurred.
If there is, then the Commission can consider what adjustments can be made to improve the system.
Regarding the 47 ballot boxes which were devoid of certain documents which ought to have been placed in the boxes by law, the validity of these claims and the consequences of whether or not they are valid are not matters that can be properly ventilated by this Commission. Again, she said, that is the jurisdiction of an Election Court, where witnesses could be called, examined and cross-examined and documents tendered.
She said that GECOM can, however, examine and strengthen its processes if necessary, and place greater emphasis in the future on ensuring that they are fully complied with by all of its staff so that such things cannot happen in a future election.
She said that if GECOM were to examine the two matters it would be acting outside of the scope of GECOM’s power and would amount to a circumvention of the law questioning the validity of an Election.
She said that a review of the elections could be done by GECOM only if the intention is to determine potential weaknesses in the processes employed by GECOM for the conduct of elections and to propose improved methods or processes for future elections.
Under Jagdeo’s PPP the PNC turned the tables and accused the PPP of rigging. LOLOL