AG asks CoA to throw out APNU/AFC’s final election petition appeal

…argues recount order was needed to resolve 2020 election controversy
…there is no basis to nullify results – Douglas Mendes

The Opposition is seeking to have its election petition #88, which was dismissed almost two years ago by acting Chief Justice Roxane George, SC, reinstated, with the Court of Appeal (CoA) of Guyana slated to hear further arguments on March 22 at 09:30h.
However, Attorney General Anil Nandlall, SC, is contending that the political party’s appeal against the Chief Justice’s decision is misconceived and without merit, and should be dismissed.

When the CoA opened arguments in the case on Wednesday, Nandlall rejected arguments from Roysdale Forde, SC, lawyer for the petitioners —Claudette Thorne and Heston Bostwick — that the results of the March 2, 2020 elections must be invalidated on the ground of serious non-compliance with the Constitution of Guyana and electoral laws as they relate to the Guyana Elections Commission’s (GECOM’s) conduct of those elections.
The petitioners’ main contention is that Section 22 of the Elections Law (Amendment) Act (ELAA), and Order #60, also known as the Recount Order, which was created pursuant to Article 162 (2) of the Constitution, violated the Constitution. That order was brought into effect by GECOM to give life to the national recount process after controversy erupted over former Region Four (Demerara-Mahaica) Returning Officer (RO) Clairmont Mingo’s declaration.
All the political parties had agreed to the recount process to end the political standoff.

Resolve controversies

According to the Attorney General, the wide ambit of power was conferred on GECOM by Article 162 (2) because of the serious controversies, difficulties, violence, and public disorder which historically erupt in Guyana during national elections.
Notwithstanding the broad powers of GECOM under Article 162 (2), controversies and civil unrest have persisted at election time in Guyana, said Nandlall in his address to the court.
“No doubt, this birthed Section 22 of the Election Laws (Amendment) Act, which imbues GECOM with wide-ranging powers to remove difficulties arising from or connected with an election, including the power to amend legislation if it is necessary or expedient to do so.”
He argued that it is “beyond dispute” that difficulty arose in respect of the 2020 elections, and therefore the basis for the invocation by GECOM of Section 22 of the ELAA cannot be contested.

In light of this, Nandlall further maintained that the delegated power was not used arbitrarily or for any unauthorised purpose, and it was exercised intra vires.
For his part, Douglas Mendes, SC, who is representing the fourth-named respondent, Vice President Dr Bharrat Jagdeo, said that Order #60 was properly and lawfully issued by the GECOM. He added that even if the court determined that Section 22 of the ELAA was unconstitutional, the elections complied substantially with the laws of Guyana, it was not a sham, and it reflected the will of the people; and therefore there is no basis to nullify the results.

Erred
Forde, on the other hand, is insisting that Justice George erred in law when she ruled that Section 22 of the ELAA and Order #60 made thereunder were not in violation of the Constitution.
According to him, by virtue of the party’s application for the election results to be declared invalid, both Section 22 and Order #60, which flowed directly from Article 162 of the Constitution, were in conflict with and/or contravened Article 177 of the Constitution.
In court documents seen by this publication, he argued, inter alia, that Justice George again erred in law when she found that Order #60 was a mechanism to allow for the recount to be conducted by expanding the recount provisions in the Representation of the People Act (RoPA).
The Senior Counsel submitted that the Chief Justice erred in law when she failed to find that the mechanisms set out in the Order amounted to a substantial variation from the Representation of the People Act (RoPA), and consequently could not be said to have “merely modified” the Act.

No evidence
In dismissing petition #88, the Chief Justice had held that the petitioners had failed to present evidence to support the contention that the conduct of the elections had contravened the Constitution and electoral laws. But the petitioners had contended that Justice George erred in law when she ruled that they did not produce evidence substantiating their claim that the elections were not lawfully conducted. Like they had done before the High Court, they have gone to the Appellate Court arguing that there was no need for the production of any evidence, except the declarations by the Returning Officers and the recount figures.
Among other things, Thorne and Bostwick had argued that the Chief Justice erred in law when she rejected the evidence before the court which established that there was a difference in the recorded figures for the political parties in the Official Gazette dated August 20, 2020, in which the results of the elections were declared pursuant to Order #60 from a letter by former Chief Elections Officer (CEO) Keith Lowenfield to GECOM Chairperson Justice (retired) Claudette Singh.
Ultimately, they are asking the court to declare that President Dr Irfaan Ali is illegally holding office.
The appeal is being heard by acting Chancellor of the Judiciary, Justice Yonette Cummings-Edwards, and Justices of Appeal Dawn Gregory and Rishi Persaud.

Necessary to ensure impartiality
Justice George, in her judgement, had noted that neither Section 22 nor the Recount Order was ultra vires the Constitution. She had added that Article 162 empowered GECOM to take whatever actions were necessary to conclude the elections, including embarking on a recount of all ballots.
Alluding to the events that occurred after the close of polls, Justice George had noted, “Given the difficulties, it does appear that it would not have been prudent for GECOM to declare the results in the peculiar circumstances that accompanied the completion of the process of the March 2 Elections. A combination of Article 162 (1) (b) of the Constitution and Section 22 confer the power upon GECOM to issue this [Recount] Order if GECOM considered it necessary or expedient to ensure impartiality, fairness, and compliance…as regards the election process.”
The results of a national recount of all ballots cast showed that the PPP/C won the general elections with 233,336 votes over the Coalition’s 217,920 votes.

Petition #99
Both of APNU/AFC’s election petitions have been dismissed by the Chief Justice.
In January 2021, she dismissed election petition #99, which was brought by Brennan Nurse and Monica Thomas, owing to their non-compliance with effecting service on the Coalition’s Presidential Candidate, David Granger.
The party had appealed her ruling to the Court of Appeal, which, by a majority decision on December 21, 2021, held that it had jurisdiction to hear an appeal against a ruling of the High Court to dismiss an election petition on the basis of procedural impropriety.
Nandlall and Jagdeo had appealed the local appeal court’s ruling to the Trinidad-based Caribbean Court of Justice (CCJ), which in October 2022 found that the CoA had no jurisdiction to hear an election dismissed for the reasons listed by Justice George. Given the ruling of the country’s apex court, that ruling was quashed and the Chief Justice’s decision was restored.
Petition # 99 can no longer be heard as all right of appeal has been exhausted.
The manner of service is prescribed in Rule 9 (1) of the National Assembly (Validity of Elections) Rules, which imposes on the petitioners the statutory obligation to effect service within five days after the presentation of the petition. Having been filed on September 15, 2020, the petition should have been served on Granger five days thereafter, which would have been September 21, 2020, since the fifth day – September 20, 2020 – was a Sunday. But in Nurse’s Affidavit of Service, it was stated that the petition, along with the relevant documents, was only served on Granger on September 25, 2020 – five days outside of the statutorily prescribed period.