Article 162 empowered GECOM to carry out recount – AG tells court

APNU/AFC election petition

…in written submissions on lone surviving petition

As the day for oral submissions in election petition 88 inches closer, Attorney General and Senior Counsel Anil Nandlall’s written submissions present arguments in defence of Order 60 of 2020, which created the recount that A Partnership for National Unity/Alliance For Change (APNU/AFC) is now trying to discredit.

Attorney General Anil Nandlall, SC

Election petition 88, filed by Claudette Thorne and Heston Bostwick, seeks to have the recount and the results that came from it, invalidated. In their petition, one of their arguments is that the Guyana Elections Commission (GECOM) had no power to establish the recount exercise carried out at the Arthur Chung Conference Centre in a drama-filled, month-long exercise.
They contend that Section 22 of the Elections Laws (Amendment) Act, under which Order 60 was made, is unconstitutional. But according to the AG in his submissions, GECOM draws wide powers under Article 162 (1) of the Constitution of Guyana, the supreme law of the country, to make such decisions.
Article 162 of the Constitution says that GECOM shall “issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.”
“Accordingly, it is submitted that pursuant to Article 162 (1), GECOM had the power to issue Order 60 of 2020 which was gazetted and dated 4 May 2020 and was amended on 29 May 2020. The recount order was issued in order to resolve irregularities, anomalies and discrepancies before declaring the results of the elections which are required to be by ROPA and the Constitution,” Nandlall stated.
In his submission, he cited case law from a number of sources. He also noted the history of Article 162 and how Section 22 of the Election Laws Amendment Act was promulgated because framers of the Constitution thought that Article 162 was inadequate and needed to be boosted to handle situations like the 1997 election controversy.
“Therefore, while Section 22 can stand by itself, it ought not to be functionally divorced from Article 162 (1,b) of the Constitution. It is to add further ‘teeth’ to Article 162,” Nandlall’s submission explained.
The AG noted that when one examines the election petition, the applicants have failed to establish any foundation on which the March 2 General and Regional Elections can be invalidated.
“In conclusion, it is respectfully submitted that learned counsel have failed to discharge the heavy burden of rebutting the constitutionality of Section 22 of the Election Laws Amendment Act 2000, neither has it been established that Order 60 was in any manner whatsoever ultra vires or unlawful,” Nandlall said in his submissions.
Election petition 88 comes up for hearing before acting Chief Justice Roxane George on April 7, 2021. Another petition, number 99 of 2020, which was filed by applicants Brenan Nurse and Monica Thomas, was previously tossed out, although APNU/AFC has since appealed.
On January 18, 2021, Justice George dismissed petition 99 owing to non-compliance with effecting service as prescribed under Section 8 of the National Assembly (Validity of Elections) Act and Rule 9 of the National Assembly (Validity of Elections) Rules. The acting Chief Justice found that the petition was not properly served on former President David Granger, the second-named respondent.
Justice George, in arriving at her decision, among other things, relied on the decision in Eusi Kwayana et al v the Chief Elections Officer et al No 205 of 1986, and noted that given the guidance outlined in this case, the procedures for the filing of an election petition must be strictly complied with, otherwise it can result in the dismissal of the petition. (G3)