Dear Editor,
My statement that: “fraud once committed, makes everything a nullity. Everything tainted by fraud is void ab initio”, has become viral. The APNU/AFC and their apologists now quote me liberally, invoking this statement manipulatively, to aid their political agenda. Expectedly, as desperation reaches fever-pitched levels with the National Recount winding down, confirming the magnitude of Mingo’s fraud, as well as a landslide PPP/C victory, APNU/AFC chose me to clutch at, as they drown in the ocean of electoral defeat.
I do not resile from these sentiments. They are axiomatic principles of law. Of course, they were hijacked from their contextual abode. I made them in reference to Mingo’s declarations. It is more than passing strange, that the APNU/AFC cling to those two sentences but omitted the remainder of what I said in the same breath. I also posited that not only did Mingo commit fraud, but that APNU/AFC lost the elections by over 15,000 votes and by virtue of the rule of law, they must relinquish Government, forthwith. I may have made over a million other statements of a similar genre. They ignored them all but plucked that which suits their political agenda of election thievery. Needless to say, I remain flattered.
In a previous missive, I explained that although Article 162 of the Constitution vests a plenitude of power in the Guyana Elections Commission (GECOM), it proscribes them by way of the linguistic device of a proviso, rendering those powers “subject to the Constitution”. Not to leave the reader in any doubt whatsoever, the very next ensuing Article – Article 163 – resides, exclusively, in the functional domain of the High Court, the jurisdiction to hear and determine whether: “either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission.”
It is undisputed that the myriad of allegations made by APNU/AFC falls into the genus of matters provided for and contemplated by Article 163. If the framers of the Constitution intended for GECOM to deal with these matters, they would have so provided. In fact, they have expressly deprived GECOM of this power by residing it in the High Court to the exclusion of every other constitutional agency, including GECOM.
The Constitution further provides that these matters must be placed before the High Court by an Election Petition, which shall be determined in accordance with the National Assembly Validity of Elections Act. The long title of that Act reads:
“Any question referred to in Article 163…of the Constitution may, in respect of an election… and with a view to securing appropriate remedial orders, be referred to the Court and shall thereupon be determined by it, in accordance with this Act.”
Any student of the law knows that this electoral legislative scheme is not peculiar to Guyana but it is what obtains, uniformly, throughout the Commonwealth. Therefore, Mr Vincent Alexander’s recent pronouncement to the press, that GECOM must “assess the credibility of the electoral process” by enquiring into allegations of malpractices, is wholly erroneous.
I wish to assure my detractors that I am not advocating that an inquiry must not be held into these allegations, but as a matter of law, it cannot be held by GECOM and can only be properly done by utilising the process provided for by the law and that is, only after the declaration of the results are made by GECOM.
Perhaps it is important that I address some of the allegations made in respect of how they would be treated in a court of law. The allegations range from voters’ impersonation of dead and migrated persons, whose names remain on the voters’ list, to missing poll books, omission to make entries into poll books, erroneous entries into poll books, unstamped ballots, inaccurate markings on List of Electors, to name a few. In an election court, moved by the proper procedure, each of these allegations will have to be proven to a certain degree and still yet, the petitioner must go on to show that the unlawful acts or omissions did affect the result of the elections. He must establish same to a certain standard of proof by the production of evidence, which will then have to be tested by cross-examination and witnesses will have to be called to rebut, in an adversarial construct.
In the Esther Perreira case, Justice Claudette Singh stated:
“…I hold that the petitioner has to prove her case on the preponderance of probability…that an unlawful act or omission did affect the result of the election.”
Therefore, the contention being bandied that if one singular instance is found of voter impersonation, then the entire election is vitiated by fraud, is absolutely nonsensical. The ballot would be vitiated and then the petitioner must go on to prove that the vitiated ballot affects the result of the election in a material way, for example: where the PPP has a 15,000 lead, one invalid ballot would not affect the result of the elections.
Any person who has a fleeting familiarity with electoral litigation will confirm that the allegations, which are being made by APNU/AFC, are not unique.
They preponderate in elections cases across the globe. As a result, there are rulings from courts, in almost every jurisdiction, in respect of each of these allegations. Judges have culled a compendium of legal principles on how they are to be addressed. A clear distillation of the principles derived from these cases, bereft of their esoteric content, can be summarised thus: an election is a mechanism for an elector to choose a Government of his choice by placing a clear and identifiable mark on an authorised ballot paper, next to the party symbol which he endorses. Once that is done, the paramount legal principle is to ensure that the will of that voter prevails over every other thing which occurs at that elections.
In short, any irregularity or omission committed must bend and bow to the glory of an authentic authorised ballot paper properly marked by the elector. It is for this reason, that once a ballot paper is not authentic, improperly marked or unstamped, it must be rejected. Reciprocally, once these requirements are satisfied, the ballot must prevail. In the case of Anthony Ribeiro v Kennedy Simmons 1979, the Eastern Caribbean Court of Appeal stated:
“I do not think that the intention of the law is that an election should be won or lost on technicalities in court, but rather the wish of the people, expressed through the ballot box, should prevail. The court should put first and foremost, in my view, the intention of the electorate.”
In this case, inter alia, at an election held in St Kitts, a number of allegations were made similar to those currently being made by APNU/AFC. For example, ballots not put into proper envelopes and sealed, pen used instead of pencil, entries, which were supposed to be made in poll books, not made. These irregularities, though established, were not permitted to invalidate any ballot cast. The court made it pellucid that no voter will be denied his/her franchise because of the negligent actions or omissions of any elections officer.
I can cite many more cases in support of my contentions, but this is not the forum to do so, nor would space permit me. The intent here is simply to bring public clarity on these important issues, as a drowning APNU/AFC continues their tirade of distortion in their futile attempts to stay afloat in the face of great turbulence created by Mingo’s fraudulent avalanche.
Sincerely,
Mohabir Anil Nandlall
Attorney-at-Law
