COA rejects APNU/AFC supporter’s appeal against validity of recount order

Another unanimous dismissal

The Court of Appeal on Thursday unanimously dismissed the appeal filed by APNU/AFC supporter Misegna Jones, and upheld Chief Justice (ag) Roxane George’s recent ruling that the National Recount exercise is valid, and that the decision taken by the Guyana Elections Commission (GECOM) to use the Recount figures as the basis for a final declaration of the March 2 elections’ results must be adhered to.

Appellate Justices Dawn Gregory and Rishi Persaud, along with High Court Justice Priya Sewnarine-Beharry, during the virtual court proceedings on Thursday

In the ruling, handed down by Appellate Justices Dawn Gregory and Rishi Persaud, along with High Court Justice Priya Sewnarine-Beharry, it was asserted that the proceedings filed by Jones is an abuse of the court system, since many of the issues raised were previously dealt with in other litigations filed regarding the protracted electoral process.
Justice Sewnarine-Beharry was the first to read her decision. In it, she contended that the issues raised in application filed by Jones, questioning the constitutionality of Section 22 of the Election Laws (Amendment) Act (which empowers GECOM to amended the legislation to resolve issues arising out of the electoral process), and the validity of Order 60 (also known as the Recount Order, which was established using Section 22 to conduct the Recount exercise) and the Recount results are res judicata.
These issues, she noted, were already adjudicated at Guyana’s apex court – the Caribbean Court of Justice (CCJ) – which earlier this month had determined the validity of the Recount Order and the recount process to be within the constitutional powers of GECOM, as well as within the legislative framework of Guyana’s electoral system.
Justice Sewnarine-Beharry, who was appearing in her maiden appellate case, further noted that at no time did the CCJ determine that a final credible count could not be established pursuant to Order 60, neither did it set aside Order 60 as is being claimed by the appellant and the Attorney General.
“The constitutionality of Section 22 of ELA, the validity of Order 60 and the Recount results have already been traversed and addressed ad nauseam in both the Court of Appeal and the apex court, and found to properly belong to an elections petition after declaration is made. These issues cannot be relitigated,” she contended.
Further, Justice Sewnarine-Beharry pointed out that decisions in public interest litigations are recognised as creating a judgement in rem (a decision issued against a specific party, but applies generally to everyone) thus rendering the issues raised as res judicata. She cited a 2006 decision of the Supreme Court of India which had stated that the doctrine of res judicata is based on two grounds: firstly, that no one can be “twice vex on one and the same cause”; and secondly, that there ought to be an end to the same litigation.
According to Justice Sewnarine-Beharry, the Indian Court had found that, in a public interest litigation, the petitioner is not agitating his individual rights, but is representing the public at large, and therefore the judgement in such matters binds the public at large and bars any member of the public from coming forward and raising any connected issue, or an issue which had been raised or should have been raised on an earlier occasion during a public interest litigation.
“Attach whatever label you may, the Fixed Date Application before the learned Chief Justice obviously raised impressible, abusive and duplicative litigation of issues already canvassed before the courts in both Ulita Moore and Eslyn David, as noted in the judgement of the learned Chief Justice, and she was correct not to rehash those issues or to allow the court’s processes to be abused. This appeal and the fourth defendant’s (Attorney General’s) cross appeal are frivolous and vexatious and amount to a further abuse of the court’s process,” Justice Sewnarine-Beharry asserted in her decision on Thursday.

Elections petition
Having also being satisfied of the validity of the Recount process, and that the issues raised were res judicata, Justice Gregory ruled that the issues highlighted by the appellant must be brought via an elections petition to the High Court after a declaration is made.
Among these issues, she outlined, is the appellant’s claim that the declarations made by the 10 Returning Officers should be the basis for the Chief Elections Officer to compile his final elections report for submission to the Elections Commission, and, ultimately, the declaration of the elections results.
However, Justice Gregory posited that this is an issue that needs to be canvassed in an election petition.
This appellate judge further noted in her decision on Thursday that, at this stage in the electoral process, it is for GECOM to determine how it proceeds with the declaration, and only after that process is completed, can the Commission’s decision be challenged.
“Right now, it is within the domain of GECOM to decide what information it wishes to use to declare the results of the elections, and the court has no jurisdiction to set aside its decision to reject the advice of the CEO… That is for the election jurisdiction [court],” Judge Gregory stated.
She further ruled that the High Court’s narrow supervisory jurisdiction at this stage of the process can be exercised to ensure that the electoral process is smoothly operated; and in this case, the court’s intervention is needed, given the impasse at the Elections Commission.
Despite having been directed by GECOM Chair, Retired Justice Claudette Singh, on several occasion to use the figures from the National Recount to prepare his final elections report, CEO Keith Lowenfield has consistently failed to comply with those instructions. Instead, he has submitted several reports using fraudulent figures, resulting in further delays of the declaration of the 2020 elections winner.
It is in light of this impasse between the CEO and the seven-member Elections Commission that Justice Gregory found that the Hight Court needed to exercise its limited jurisdiction to ensure the process moves forward.
“The intervention in this case is to advance the process and to provide clarity on the roles to be performed…by the CEO, the Chairperson, and the Commission, and to explain the lines of authority between the CEO and the Commission. I agree that there was jurisdiction to ensure the smooth operation of the election process in this case…and in my view, the [High] Court was entitled to make the orders it did…,” the appellate judge ruled.

CEO’s statutory office
Meanwhile, Justice Persaud, in his decision, pointed out that the electoral laws clearly state that the Chief Elections Officer holds a statutory office, and is therefore subjected to the disciplinary control, guidance and direction of the Commission.
According to that appellate judge, the Commission cannot be expected to accept any unlawful or illegitimate advice from the CEO.
“Such a proposition is absurd, and is squarely rejected,” Justice Persaud posited.
In his last report to the Commission, on July 11, Lowenfield had used the discredited figures of embattled Region Four Returning Officer Clairmont Mingo, who was found during the recount process to have heavily inflated the votes from Guyana’s largest voting district in favour of the caretaker APNU/AFC Coalition.
This was despite the CCJ, in its July 8th ruling, stating that it is for GECOM to ensure that the CEO submits a report in accordance with the directives from the Chairperson to use the Recount results, which have overtaken the initial declarations made by the 10 ROs.
The 33-day recount exercise shows that the PPP/C won the elections with 233,336 votes, while the APNU/AFC obtained 217,920 votes – a difference of 15,416 votes.
Justice Persaud, in Thursday’s decision, reinforced that the CEO is duty bound to prepare and present his elections report based on the Recount results, as instructed by the GECOM Chair.
The three judges unanimously dismissed the appeal in their respective decisions. (G8)