Attempt to rig 2020 elections: Review focused on investigating occurrences outside GECOM’s power – Chair tells Opposition Commissioners

Guyana Elections Commission (GECOM) Chairperson, Retired Justice Claudette Singh has reasoned that any review focused on investigating actual occurrences during the 2020 elections by the electoral body would be outside the scope of its power.

However, she noted that should the intention of a proposed review be to consider if there are, in fact, potential weaknesses in the processes employed by GECOM for the conduct of elections and to propose improved methods or processes for future elections, then this can and should be undertaken.
Justice Singh made these positions known in writing following a request made some five months ago by the Opposition Commissioners that an internal investigation be launched into the events of the 2020 elections.
In her decision, the GECOM Chair said that it was important that a distinction be made between a review of GECOM’s processes in effectively conducting an election and an investigation into what actually transpired during a particular election.

She said Article 163 (1) of the Constitution, the Supreme Law of Guyana, stipulates that the High Court has exclusive jurisdiction to determine questions relating to the validity of an election. GECOM is not a court of law and, therefore, has no authority to determine whether an election was lawfully conducted, and no such power was conferred on it under Article 162 (1) (b).
“A perusal of Articles 162 and 163 shows that the Constitution clearly and sharply separates the functions of GECOM and the High Court respectively in matters of electoral laws. The Commission does not have, and cannot clothe itself with, the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein. Any such question can only be determined by way of an election petition filed in the High Court,” Justice Singh said in her submission on the issue.
According to her, two of the questions raised in relation to whether GECOM should conduct a review of the 2020 elections are: the voting of persons who could not have voted, whether because they were dead or out of the jurisdiction, and the absence of documents which are required by law to be present in ballot boxes from a number of ballot boxes.

Validity of votes
According to Singh, in relation to the first question, which is essentially an issue of the validity of votes, Section 96 of the Representation of the People Act, Chap 1:03 calls on the Chief Elections Officer to calculate the total number of valid votes of electors which has been cast for each list candidate.
The term valid votes received judicial interpretation, she noted, from the highest court of Guyana, the Caribbean Court of Justice (CCJ) at paragraph [45] of the decision of Mohamed Irfaan Ali v Eslyn David.
Singh, in her submission, noted that although the Chief Immigration Officer submitted a list of names or persons who were alleged to have been out of the jurisdiction on Election Day but yet appeared to have voted, such information cannot be regarded as established facts, but can only be tendered as evidence for determination by a court of law. Such a court can determine the credibility of such information by calling witnesses and subjecting them to cross-examination. These witnesses would be no other than immigration officers who would have to tender the Entry and Departure documents of those persons and also their identity must be ascertained from their travel documents.
“The most that GECOM can do in this regard is to examine its processes to see whether there are gaps or weaknesses in its processes that make it possible for votes to be counted for persons who could not have voted. This requires no more than an examination of the processes currently employed in light of the claims made, and a determination of whether there is potential for such to have occurred. If there is, then the Commission can consider what adjustments can be made to improve the system,” Singh said.

Missing documents
She added that as regards the 47 ballot boxes which were devoid of certain documents which ought to have been placed in the boxes by law, the validity of these claims and the consequences of whether or not they were valid were not matters that could be properly ventilated by the Commission. Again, that is the jurisdiction of an election court, where witnesses could be called, examined and cross-examined, and documents tendered.
“GECOM can, however, examine and strengthen its processes if necessary, and place greater emphasis in the future on ensuring that they are fully complied with by all of its staff, so that such things cannot happen in a future election.”
According to Justice Singh, she is of the view that any review focused on investigating actual occurrences during the 2020 elections by GECOM would be outside the scope of the Commission’s power and a circumvention of the law questioning the validity of an election.
“However, should the intention of a proposed review be to consider if there are, in fact, potential weaknesses in the processes employed by GECOM for the conduct of elections, and to propose improved methods or processes for future elections, then this can and should be undertaken. There is, in fact, an established mechanism whereby the final report of an election, which the CEO must cause to be prepared – this report can be analysed and be the basis for such a discussion,” she said in her decision.