APNU/AFC prolonging Guyanese misery with appeal

…as CJ throws out latest court challenge
…rules that Section 22 best addressed before elections court

The People’s National Congress (PNC)-led A Partnership for National Unity/Alliance for Change (APNU/AFC) seems to be on a never-ending journey to further prolong the declaration of the results for the March 2 General and Regional Elections.

The party’s Roysdale Forde – a candidate for these elections, has been spearheading all the legal challenges since March 2. He has been integral in the legal battles of Eslyn David, Ulita Moore and now Misenga Jones.
The cases are aimed at further compounding the electoral impasse and blocking the declaration of the results using the results obtained from a transparent and credible National Recount of the ballots. The National Recount shows that People’s Progressive Party/Civic (PPP/C) won the March 2 polls with 233,336 votes cast in its favour while APNU/AFC secured 217,920 votes.
In the latest move to stall his party’s exit, Forde signalled their intention to appeal the Chief Justice’s ruling in the Misenga Jones v GECOM et al matter.
CJ (ag) Roxane George, on Monday, dismissed Jones’ application for judicial review since most, if not all, of the 28 reliefs she sought from the court were already litigated in previous matters brought by Forde in the cases of Moore and David.

Last Friday, during the oral submissions, the CJ was asked to first determine whether the Court had the jurisdiction to hear Jones’ case as well as if Section 22 of the Elections Laws (Amendment) Act, No 15 of 2000 is unconstitutional. It was this SECTION that gave birth to Order 60 of 2020 (the Recount Order).

Jurisdiction
On the issue of jurisdiction, Forde’s argument was led by Trinidadian Senior Counsel John Jeremie and they contended that Chair of the Guyana Elections Commission, Retired Justice Claudette Singh and the six politically-aligned Commissioners have not complied with their duties as outlined in Article 177 (2) (b) of the Constitution which speaks about the declaration of the elections. They, supported by Chief Elections Officer Keith Lowenfield and Attorney General Basil Williams, contended that the Commission also did not adhere to Section 84 of the Representation of the People Act.
As a result, Jones sought to have Article 177 (2) (b) interpreted because, as submitted on her behalf, an impasse now exists between the Chairperson and the CEO as to which results are to be used in order to declare the election. In this regard, it is contended that the Chairperson is obliged to accept the report and advice of the CEO in relation to the declaration of the results.
It was submitted that this impasse must be resolved now, and cannot await an election petition.

In arguing the point of jurisdiction, it was placed before the court that “the court’s supervisory jurisdiction can be invoked to ensure the correct and smooth operation or progress of the elections proceedings or process.” This is provided for in Article 226 (7) of the Constitution which permits the court to enquire whether the Chairperson and GECOM are acting lawfully in the context of Jones’ case.
CJ George noted that it was also argued that the court has no jurisdiction and the issues raised speak to an election dispute which is best dealt with pursuant to Article 163 by the way of an election court via to an election petition. This was countered by arguments that the court has narrow jurisdiction.
Justice George stated that she is cognisant of the restrictions imposed on the court by Section 140 of the Representation of the People Act as well as by Article 163 of the Constitution which sets out the procedures for settling elections disputes. Nevertheless, she reasoned that in the peculiar context of this case, where there is an impasse regarding the decision-making of GECOM to complete the elections process and is necessary to advise the process which is still in progress, a judicial review is necessary to address this impasse.

“I am of the view that the applicant is really seeking the interpretation of the Constitution for a determination whether the Chairperson, GECOM and the CEO are acting lawfully. It is in this context that there can be judicial review of their decisions. I have further concluded that in this context there is a distinction to be drawn as regards enquiring into the functions of the Chairperson and GECOM, which are restricted by Section 140 of the RPA, and interpreting the constitutionality of Section 22 and Order 60, as well as Article 177, to determine if they are acting lawfully, albeit these provisions speak to the powers and functions of the Chairperson and GECOM.
“Thus, on this narrow basis, it is an enquiry into the legal framework that guides the carrying out of their functions to complete the elections process. If the legal framework is found to be unconstitutional and therefore void, then their functions and actions would perforce be affected. Applying my decision in Holladar and the Court of Appeal decision in Moore, by which I am bound, I hold that this court has jurisdiction to hear this application,” she stated.

Elections court
Section 22 of the Elections Law Amendment Act 15 of 2000 states: “If any difficulty arises in difficulties. connection with the application of this Act, Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.”
Jones, Lowenfield and AG Williams had contended that Section 22 is unconstitutional because it confers law-making powers on GECOM – a non-legislative body, in contravention of Article 170 of the Constitution – which provides for Parliament to be the law-making body. It was argued that Parliament cannot transfer or delegate this power to another entity and that in this case, in conferring on GECOM an arbitrary law-making power, it has abdicated its law-making power. In this regard, the enactment of Section 22 offends the separation of powers, more especially as it permits GECOM to amend laws even when Parliament is dissolved.
However, the respondents had argued that Section 22 is not unconstitutional as it did not give GECOM an unfettered discretion to act since it is limited in its scope. Section 22 is only applicable where difficulties arise in the application of the specified legislation that GECOM is entitled to make provision as necessary and expedient for removing the difficulty.
They had furthered that while GECOM is given the power to amend legislation, the period within which this can be done is only for three months after the elections, and when Parliament is not dissolved, the power is subject to negative resolution. The power delegated to GECOM being so narrowly prescribed means that the scope of the power was carefully considered by Parliament.
In her ruling, the CJ reasoned that the constitutionality of Section 22 poses very little difficulty given the decision of the Appeal Court in the case of Moore where they found that the legality of Section 22 was “a matter to be frontally examined by the Court at a full hearing.”
“The Court of Appeal having pronounced that a challenge to the constitutionality of Section 22 would be for an election petition, the principles of res judicata apply. So, the issue having been raised and importantly dealt with by the Court, it cannot be canvassed again. And even more importantly, since it is a decision of an appellate court, sitting as I am in the High Court, I am bound to follow this decision. I can discern no distinguishing feature that would permit me to depart from this judgment; nor has any evidence been disclosed on the affidavits by and/or on behalf of the applicant such as to permit me to do so,” she said.
Following the reading of the judgement, Forde indicated that they would appeal the ruling despite the CJ indicating that the matters are all res judicata.
Many have seen this move as one by the APNU/AFC to further prolong the elections impasse and their determination to not leave office. (G2)