CEO cannot “engage on a frolic of his own” – GECOM Chair submits

…asks court to throw out coalition’s latest challenge

Section 92 (2) of the Representation of the People Act (ROPA) outlines the mandate of the Chief Elections Officer (CEO) in the preparation of his final report and while Article 177 (2) (b) of the Constitution dictates that “acting only in accordance with the advice of the Chief Election Officer” can the Chair of the Guyana Elections Commission (GECOM) declare the results of an election, the Chair, Retired Justice Claudette Singh, has submitted to the High Court that the CEO has to follow the directions of the Commission.

This was related via the submissions of Justice (ret’d) Singh, through her attorney, Kim Kyte-Thomas, in the matter of A Partnership for National Unity/Alliance For Change (APNU/AFC) supporter Misenga Jones v the Guyana Elections Commission et al.

Attorney Kyte-Thomas, on behalf of Retired Justice Singh, submitted

that if one is to take Article 177 (2) (b) in part then it would mean that the CEO could submit whichever report he wants and the Commission is bound to accept such. This, she noted, would be tantamount to elevating the CEO above the Commission, the Constitution and the Laws of Guyana. The GECOM Chair noted that “one man or woman cannot be vested with such absolute unchecked power” and “it

is inconceivable that the framers of the Constitution would have so intended.”
Through her submissions, in the case of Jones – who is seeking to block the declaration of the elections results using the figures from the National Recount, Justice (ret’d) Singh argued that Section 96 (2) of the Representation of the People Act (ROPA) stipulates what CEO Keith Lowenfield is mandated to do and as such, he cannot escape the intention of Parliament to thread on his own path.

“Section 96 (2) of ROPA stipulates what he is mandated to do and as such he cannot escape the intention of Parliament to engage on a frolic of his own,” Kyte-Thomas said in her written submission.
Section 96 (2) of ROPA states: “The Chief Elections Officer shall prepare a report manually and in electronic form in terms of Section 99 for the benefit of the Commission, which shall be the basis for the Commission to declare and publish the elections results under Section 99.”

Dismissed forthwith
During Friday’s five-hour-long hearing before acting Chief Justice Roxane George, Kyte-Thomas deciphered the arguments of counsel for the applicant, Trinidadian Senior Counsel John Jeremie.
She furthered that the High Court lacks jurisdiction to hear the matter and as a consequence, it should be dismissed forthwith. In support of her argument, Kyte-Thomas said that the reliefs sought by Jones are best addressed in an elections petition by virtue of the Elections Court.
Among other things, Jones is seeking a declaration that the Elections Commission does not have the constitutional authority to direct Chief Elections Officer, Keith Lowenfield.
This is despite the clear provisions of Section 18 of the Election Laws (Amendment) Act No 15 of 2000. Section 18 states that: “the Chief Election Officer and the Commissioner of Registration shall notwithstanding anything in any written law be subject to the direction and control of the Commission.”
The coalition supporter is also seeking a declaration that the GECOM Chair failed to act on the advice of the CEO when he submitted a falsified report on July 11 using the 10 declarations by the Returning Officers inclusive of that made by Clairmont Mingo.
Kyte-Thomas argued that all of the reliefs sought by Jones have been ventilated through the plethora of electoral challenges that have commenced since the March 2 General and Regional Elections.
The Chair’s attorney furthered that neither Jones nor her attorneys can escape the fact that the courts have already endorsed the recount as legal and it was from there that Order 60 of 2020 (Recount Order) was birthed.

Rubbished argument
One of the major contentions of Jones’ application is that the CCJ, in the case of Irfaan Ali et al v Esly David et al, ruled that Order 60 of 2020 (the Recount Order) was illegal and should form no basis for the declaration of the results.
However, she rubbished this argument, noting that the CCJ, in fact, endorsed the valid, transparent nature of the Order. She noted that the entire judgment has to be read as a whole and the court should not permit one to cherry-pick certain parts to misconstrue and base submissions on.
As per the Recount Order, Clause 14 provides that the Commission can make the declaration from the final credible count of the results. Therefore, Kyte-Thomas submitted that the GECOM Chair correctly found that the results of March 13 declaration cannot be used at this time since these were replaced by the tabulation of the votes at the recount process which the CCJ described as a transparent and credible process.
She explained that in the CCJ’s judgement, which is being cherry-picked by the applicant, the Court was referring to Justice Brassington Reynolds’ ruling in the Eslyn David matter that Order 60 created a new election regime. She added that the Court, the Order or any subsidiary legislation could not amend the Constitution.
“The Court went further to say that GECOM nor the Court of Appeal could trample on the exclusive jurisdiction of the High Court to hear these matters (via an elections petition),” the attorney argued.
She proffered that Article 8 of the Constitution which states: “This Constitution is the supreme law of Guyana and, in any other law is inconsistent with it, that other law, shall to the extent of the inconsistency, be void,” caters for such amendments that come into conflict with the Constitution.
“GECOM at no stage intended or set out to usurp, trample, trespass or somehow take upon itself the clear provisions of Article 163 of the Constitution. That was never the intention of Order 60. The purpose, aim of Order 60, was to simply produce a final credible count of the votes of the March 2020 elections,” Kyte-Thomas submitted.
She noted that the Order does not establish the Elections Commission as a High Court and as such they are not equipped to take evidence of any allegations and determine the validity of them. She explained that when the Commission speaks of credibility, it speaks to the counting of the ballots to assuage what led to the March 13 declaration by Clairmont Mingo.
Mingo would have inflated the APNU/AFC’s votes by over 19,000 while deducting over 3000 votes from the PPP/C. Those numbers were enough to catapult the APNU/AFC to the seat of power when the real numbers show that the PPP/C were elected to office.
“The final credible count which the court speaks about is in relation to the count which led to the March 13 declaration and the controversies which visited and as our apex court said to ensure this new transparent process would produce a final credible count,” she noted.

CEO responsibilities
Moving back to the responsibilities of the CEO, Kyte-Thomas argued that the CEO’s responsibility was to tabulate the matrices of the ten electoral districts and submit to the Commission a report together with a summary of observation reports for each District as per the stipulations of Order 60. The Commission then deliberated on the report and instructed him to present his final report.
Those steps were followed and the CEO was directed to use the numbers emanating from the recount which shows that the PPP/C secured 233,336 and the APNU/AFC got 217,920.
However, Lowenfield’s latest report, submitted on July 11, discards the directions of the Commission and, in fact, reverted to the already discredited March 13 fraudulent figures.
The March 13 declarations were replaced by the final credible count of ballots, which was arrived at through the National Recount and certified process.
“It is respectfully submitted that this court has no jurisdiction to entertain this application or alternatively even if the court finds jurisdiction, this matter should be dismissed on the ground that it amounts to an abuse of the court’s process since the issues have all been ventilated and determined by courts of competent jurisdiction to so do,” Kyte-Thomas said in her submission. She added that the Commission should be permitted to execute its constitutional role and functions to bring finality to the March 2020 Elections. (G2)