…says GECOM must ensure CEO submits report in accordance with June 16 directive by Chair
The Caribbean Court of Justice (CCJ) on Wednesday discarded the fraudulent report submitted by embattled Chief Elections Officer Keith Lowenfield to the Guyana Elections Commission (GECOM), in which he invalidated over 115,000 votes based on the recent ruling of Guyana’s Court of Appeal.
In a 2:1 majority decision on June 22, the Appeal Court had ruled that the Constitutional phrase “more votes are cast” must be interpreted to mean “more valid votes are cast”. This essentially inserted the word “valid” in Article 177 (2) (b) of the Constitution.
The ‘flawed’ interpretation was presented by Appeal Court Justice Dawn Gregory and High Court Justice Brassington Reynolds, while Appeal Court Justice Rishi Persaud had found that the Court does not have the jurisdiction to entertain the case that was filed by APNU/AFC supporter Eslyn David.
The day following the ruling, which was stayed by the Appeal Court for three days, Lowenfield had submitted his final elections report with figures which he deemed “valid”, and in the process had invalidated over 115,000 voters to give the APNU/AFC a win with 171,825 votes, while the People’s Progressive Party/Civic (PPP/C) was given 166,343 votes.
This is despite the certified National Recount showing the PPP/C victorious, having secured 233,336 votes while the caretaker Coalition obtained 217,920 votes – a difference of 15,416 votes.
The PPP/C had subsequently moved to the CCJ to challenge the Appeal Court’s decision and jurisdiction to hear the proceedings, which it contends is a matter for an elections petition to the High Court after the elections have been completed and a new president is sworn in.
In a unanimous decision on Wednesday, the CCJ allowed the appeal filed on behalf of PPP/C Presidential Candidate Irfaan Ali and General Secretary Bharrat Jagdeo, saying that the decision of the Appeal Court was invalid, and was made without jurisdiction, and is therefore of no effect.
Against this backdrop, CCJ President Justice Adrian Saunders declared Lowenfield’s fraudulent report to be invalid as well.
“This Court is entitled and required to declare it invalid…the report issued by the CEO, which was based on the decision of the Court of Appeal,” he posited.
Article 177 (2) (b) which states: “where… there are two or more Presidential candidates, if more votes are cast in favour of the list which a person is designated as Presidential Candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections Commission acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting…”
However, according to Justice Saunders, by unnecessarily inserting the word “valid” into the Article, the Appeal Court invited Lowenfield to submit his fraudulent report.
“The Court of Appeal impliedly invited the CEO to engage unilaterally in a further and unlawful validation exercise that trespassed on the exclusive jurisdiction of the High Court established by Article 163. It was inconsistent with the constitutional framework for the CEO or GECOM to disenfranchise tens of thousands of electors in a seemingly non-transparent and arbitrary manner, without the due processes established in Article 163 and Validation Act,” the CCJ President said in the unanimous ruling.
The CCJ president went on to say that the “valid votes” were already calculated in a transparent exercise; that is, the recount exercise that was witnessed by stakeholders, that weeded out spoilt or rejected ballots.
Moreover, the CCJ contended that if the integrity of a ballot, or the manner in which a vote was procured, is being questioned – as is the case with the allegations of irregularities by APNU/AFC’s Joseph Harmon, then that would be a matter for an elections petition to be filed in the High Court after the elections are completed in accordance with Article 163.
While declaring the PPP/C with a 15,416 votes lead over the APNU/AFC, Lowenfield, in his report on the Recount Exercise on June 13, said it cannot be ascertained that the results meet the criteria of “free and fair elections.” This was based on the allegations made by the caretaker Coalition.
However, two days later, the GECOM Chair (retired) Justice Claudette Singh noted that while some of the allegations were serious, the Commission did not have the machinery to adjudicate them. She had ascertained that the Elections Commission lacked 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.
To this end, she directed the CEO, via a letter dated June 16, to prepare and submit his report two days later “using the results of the recount.”
But before the CEO could comply with this request, the Elsyn David matter was filed in the Appeal Court.
GECOM lacks legislative authority
In Wednesday’s ruling, Justice Saunders said Justice Singh was right to state that GECOM lacked the legislative authority and the machinery to embark upon a determination of such irregularities.
On this note, he said going forward now, “It is for GECOM to ensure that the CEO submits a report in accordance with his directives of 16th of June in order to proceed along the path directed by the laws of Guyana.”
Meanwhile, the CCJ President also lamented the current protracted political situation in Guyana.
“As Guyana’s final court, the court stated that it could not, however, in all the circumstances, pretend to be oblivious to events that have transpired in that country since December 2018. Indeed, the court had to pronounce on some of those events. It has been four months since the elections had been held and the country has been without a Parliament for well over one year. No one in Guyana would consider this to be a satisfactory state of affairs. We express the fervent hope that there would quickly be a peaceable restoration of normalcy. Now the law must run its course,” he asserted.
Back in December 2018, the APNU/AFC Coalition was toppled via a majority vote of a No-Confidence Motion in the National Assembly – which the CCJ had ruled was validly passed.
However, the caretaker Coalition failed to call elections within the stipulated three-month period, as stated in the Constitution.