Appeal Court to rule today on validity of recount order

All eyes and ears will be on the Court of Appeal today as it delivers a judgement in the appeal filed by APNU/AFC supporter Misegna Jones, who is challenging Chief Justice (ag) Roxane George’s recent decision on the validity of the Recount Order, and the ruling that figures emanating from the National Recount must be used as the basis for a final declaration of the March 2 elections’ results.

Appellate Justices Dawn Gregory and Rishi Persaud, in association with High Court Justice Priya Sewnarine-Beharry, are presiding over the case, and heard arguments from the various parties during a marathon virtual hearing on Saturday last.
The Court has scheduled the delivery of its ruling for today at 11:00h. The proceedings will be streamed live.
Jones, through her lawyers, led by Trinidadian Senior Counsel John Jeremie, is seeking to have overturned Justice George’s decision in a case initially filed by Jones, in which she has been seeking to compel the Guyana Elections Commission (GECOM) to utilise the 10 declarations by the Returning Officers as the basis for announcing the winner of the March 2 elections.
The Chief Justice has, however, dismissed Jones’s application for judicial review on ground that the issues were res judicata, which means that they have already been ventilated and pronounced upon by a competent court, and cannot be relitigated.
In total, Jones had sought 28 reliefs from the court; but all, save and except for the issue of jurisdiction, were dismissed.

Justice George had reiterated that Chief Elections Officer Keith Lowenfield is not “a lone ranger” and “cannot act on his own”; but is subjected to the direction of the Elections Commission. Additionally, she expressly stated that the figures from the 33-day Caricom-observed National Recount should form the basis for the declaration of the results.
In the appeal filings, Jones is contending that the Chief Justice erred in law when she dismissed the case.
Jones’s application listed 23 grounds for the appeal, and states, among other things, that the CJ erred in law when she held that the issues raised in the case were res judicata when she failed to find that the Chair of GECOM and/or GECOM had acted outside their constitutional and/or statutory power.
During Saturday’s hearing, SC Jeremie contended that is in defiance of the established principles for the High Court to say that res judicata applies in this matter, and further argued that Order 60 (under which the Recount was conducted) is invalid. He posited that GECOM cannot be given the power to overturn the results of the initial declarations already made by the 10 Returning Officers.

But in opposing arguments, Senior Counsel Douglas Mendes – representing People’s Progressive Party Presidential Candidate Irfaan Ali and General Secretary Bharrat Jagdeo — posited that the Appeal Court itself had previously, in the April Ulita Moore matter, clearly determined the court’s jurisdiction.
In the Moore case, the Appeal Court had declared the reach and ambit of Section 140 of the Representation of the People’s Act (RPA) – which prohibits any review of the performance of GECOM’s functions, except on an election petition, which can be filed only after a declaration is made. This, Mendes submitted, like any declaration or interpretation of the law or the constitution, binds everyone.
“It is not a question of res judicata as much as it’s a question of stare decisis – this is judicial precedence. This is part of the laws of Guyana until that law is overturned by a higher court; and all courts must abide by it, including this court, because the rule is, the Court of Appeal in civil matters is bound by its own decisions until those decisions are overturned by the higher court,” Mendes had outlined.
Moreover, he told the Appeal Court that with its “narrow jurisdiction”, it can only intervene in the ongoing electoral process at this stage, to ensure that it is completed; and in this case, that would include compelling the Chief Elections Officer to adhere to the directions of the Elections Commission and use the figures from the National Recount to present his elections report.
Lowenfield has consistently failed to comply with the instructions of the GECOM Chair, Retired Justice Claudette Singh, and on several occasions, went ahead to present fraudulent figures to GECOM.
“You are allowed to intervene in order to ensure that the process is completed; and in the circumstances of this case, the only intervention that you can make is to require Mr. Lowenfield to comply with GECOM’s direction to prepare his report in accordance with the Recount. That is the only basis upon which you can intervene,” Mendes contended during his oral submission.

Electoral fraud
Meanwhile, GECOM Chairperson, Retired Justice Claudette Singh, who is one of the named respondents in Jones’s application, has urged the Court of Appeal to not “aid and abet” electoral fraud, as it is being asked to do by the appellant.
“When one properly examines (the matter), the appellant is asking the judicial system to aid and abet a series of illegalities which occurred in this nation, which led to March 13 declaration. You’re asking the judicial system to set aside, remove, the Recount results which (have) been hailed by our highest court as a transparent, credible process,” Attorney Kim Kyte-Thomas submitted on behalf of the GECOM Chair.
She further argued that the CEO cannot act on his own, and must abide by the directions of the seven-member Elections Commission to use the Recount figures to compile his elections report.
“The Chief Election Officer is not a constitutional officer. He is a statutory officer… He cannot flout the law, he cannot act in excess of the law. His report must be constrained, his report must be in accordance with the law; and right now, Order 60 forms part of the electoral laws in this country. So, he must act in accordance with that,” Kyte-Thomas proffered.
But Attorney General Basil Williams, another one of the named respondents, asserted that “the role of the CEO under the Constitution must be seen as separate from his day-to-day administrative functions, where he is under the direction and control of the Commission.” (G8)