APNU/AFC’s 2nd dismissed election petition: CoA to move ahead with hearing 17 months after appeal filed

…Forde blames lengthy delay on CJ’s failure to issue written judgement

The Court of Appeal (CoA) on Monday unanimously ruled that it will proceed with hearing an appeal against a 17-month-old judgement by Chief Justice (ag) Roxane George, SC in which she dismissed the APNU/AFC’s second election petition challenging the results of the 2020 General and Regional Elections and has fixed November 1 for hearing.

Filed by Claudette Thorne and Heston Bostwick, the petition sought to have the election results invalidated on the ground of serious non-compliance with the Constitution and electoral laws as it relates to the Guyana Elections Commission (GECOM)’s conduct over those elections.
In May 2021, an appeal was filed against the Chief Justice’s ruling which was rendered on April 26, 2021; but 17 months later, the appeal has not been heard.

Public interest
On Monday, the court’s bench comprising Chancellor of the Judiciary (ag) Justice Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud ruled in favour of a motion filed by Senior Counsel Roysdale Forde for the hearing of the matter to be expedited, noting that its reason for doing so is because of the public interest nature of the case.

“A party or an applicant should not be turned away from the seat of justice given the nature of this matter and, therefore, in the interest of justice we will grant the application,” the Chancellor said.

Petitioners to be blamed
Trinidadian Senior Counsel Douglas Mendes, who represented Vice President Dr Bharrat Jagdeo, one of the respondents in the appeal had, however, asked the court to dismiss the motion, arguing that it was the petitioners who had failed to initiate the process to prosecute the matter.

While Mendes acknowledged that the appeal should be treated with urgency as it concerns the composition of the membership of the National Assembly, he argued that there would have been no resistance if the petitioners had filed the application for an urgent hearing by May 31, 2021, instead of August 30 to cater for a further appeal to the Caribbean Court of Justice (CCJ).
“Appeals of this nature ought to progress with due dispatch in order that any disputes concerning the membership of the National Assembly ought to be resolved not only in the interest of the parties but to the nation, to the entire electorate…” According to Mendes, the petitioners are blaming everyone except themselves for the delay in the hearing of the matter.
He said, “My learned friend [Forde] is blaming everyone except the appellants themselves,” adding that the Chief Justice’s draft ruling, which reflects her full judgement, was available from May 4, 2021. Considering this, Mendes contended that nothing was preventing the petitioners from drafting their NoA and establishing their grounds of appeal.

Substantial prejudice
But Forde, who is also the shadow Attorney General and Legal Affairs Minister, argued that this is not the case, stating: “The High Court documents which would be necessary to constitute an appeal… remain in the custody of the High Court.”
According to him, a memorandum was sent by the Court of Appeal to the High Court requesting Judge George’s written ruling and the necessary documents to prepare the record of appeal, but he is yet to receive them.
His clients, Forde pointed out, 19 months after the Chief Justice rendered her ruling, were forced to file the motion requesting an expedited hearing not only because she failed to deliver a written decision but because she did not prepare the necessary documents and send them to the Appeal Court.
When Justice George rendered her judgement on April 26, 2021, Forde recalled that she specifically said that her “full decision is to follow”, and that a draft transcript of her decision will be available and is to be used for information purposes until her actual decision is made available.
In light of this, the Senior Counsel complained, “We have suffered substantial prejudice by the failure to have the full decision made available and laid over to the [Court] of Appeal in which we could first establish and adjust the Notice of Appeal (NoA) and to proceed to constitute the NoA and the other documents to constitute the record of appeal.”
The Court of Appeal, however, will move ahead with the hearing despite the Chief Justice’s written decision still being outstanding and which renders the record of appeal incomplete. Forde said that the system is to be blamed for the delay and not his clients.
In the end, the Chancellor of the Judiciary promised an investigation into whether the delay in the hearing of the appeal is the fault of the conduct of the petitioners or the justice system.

No evidence
Thorne and Bostwick had contended that Section 22 of the Elections Law (Amendment) Act and Order #60, also known as the Recount Order, were in violation of the Constitution.
But, in dismissing the petition, the Chief Justice held that the petitioners failed to present evidence to support that the conduct of the elections contravened the Constitution and electoral laws. She ruled that neither Section 22 nor the Recount Order was ultra vires the Constitution, adding that Article 162 of the Constitution 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 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.”

Erred
However, Coalition lawyers in their appeal contended that Justice George erred in law when she ruled that Section 22 of the Elections Law (Amendment) Act 2000 and Order #60 made thereunder were not in violation of the Constitution.
According to them, by virtue of their application for the election results to be declared invalid, both Section 22 and Order #60 which flowed directly from Article 162 were in conflict with and or contravened Article 177 of the Constitution.
In court documents seen by this publication, they further contended 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 petitioners submitted that Justice George erred in law when she failed to find that the mechanisms set out in Order No #60 amounted to a substantial variation from the RoPA and consequently could not be said to have “merely modified” the said Act.
Besides that, they complained that she erred in law when she ruled that they did not produce evidence that claimed that the elections were not lawfully conducted. Like 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.
Thorne and Bostwick, among other things, argue 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 results were declared pursuant to Order #60 from a letter by former Chief Elections Officer (CEO) Keith Lowenfield to GECOM’s Chairperson retired Justice Claudette Singh.

Thrown out
Both of APNU/AFC’s elections petitions have now been dismissed by the Chief Justice. In January 2021, she dismissed APNU/AFC’s election petition which was filed by Brennan Nurse and Monica Thomas owing to their non-compliance with effecting service on President David Granger.
The party 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.
In so doing, the Court of Appeal rejected arguments by Attorney General and Legal Affairs Minister Anil Nandlall, SC, that the court had no jurisdiction to hear and determine the appeal; neither from statute, the Constitution nor does it have inherent jurisdiction.
Meanwhile, in a consolidated appeal at the Caribbean Court of Justice (CCJ) which was heard on July 19, Nandlall, and Vice President Dr Bharrat Jagdeo, in his capacity as General Secretary of the PPP/C, argue that the Court of Appeal erred and therefore its decision should be overturned.
The CCJ has reserved its ruling. (Fiona Morrison)