Commission is not a court of law – Claudette Singh

…GECOM to use recount results to declare winner of 2020 Elections
…allegations must be taken to a court as a petition

In a groundbreaking decision, Guyana Elections Commission (GECOM) Chairperson, retired Justice Claudette ‘Iron Lady’ Singh, has decided to use the results from the recently concluded elections recount and have the People’s Progressive Party/Civic (PPP/c) declared the winner of the 2020 General and Regional Elections.

This decision was made on Tuesday afternoon, after a day of meeting between Singh and the six GECOM commissioners.
In a subsequent statement sent out from GECOM, it was explained that Singh has advised Chief Elections Officer Keith Lowenfield to use the valid votes cast for each party in accordance with Article 177 and Section 96 of Representation of the People Act (ROPA) to give a summary of these valid votes and to prepare a final report.

The statement noted that after considerable deliberations at the Commission on the report submitted by Lowenfield on the national recount of votes cast in the March 2, 2020 General and Regional Elections, Singh has requested that the CEO prepare a report to ascertain the results of the elections under Section 96 of the Representation of the People Act, Chapter 1:03, and in keeping with Order No. 60 of 2020 and its addendum dated 29th May, 2020.

No power to interrogate, annul
In her decision, Singh was very clear that GECOM does not have the power to interrogate witnesses and determine the credibility of an election. This, according to her, is for the High Court and an election petition.

Similarly, Singh noted that GECOM is not empowered to annul an election under any law. This is something that APNU/AFC-nominated GECOM Commissioners had asked for in a motion moved before the Commission on Tuesday morning, and which was ultimately defeated.
“In her decision to the Commission, Justice Singh asserted that the Commission does not have 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,” the statement also said.
“The Chairperson posited that she is of the opinion that some of the allegations are of a serious nature and must be addressed. However, Article 163 (1) (b) of the Constitution confers on the High Court the exclusive jurisdiction to determine the validity of an election.”
Singh, a retired Appeal Court Judge, explained in her decision that GECOM conducted the National Recount under Article 162 (1) (b) of the Constitution “to take such action as appear necessary or expedient to ensure impartiality and fairness.”

High Court
This, according to Singh, does not mean that GECOM can assume powers to give itself the jurisdiction to determine the credibility or an election. In fact, Article 163 of the Constitution of Guyana is clear that the High Court has the exclusive right to determine the credibility of an election.
“In this regard, GECOM could not have thereby clothed itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election, when Article 163 (1) stipulates that the High Court shall have exclusive jurisdiction to determine the legality of an election,” GECOM said in its statement.
Justice Singh also noted that the Commission cannot arrogate to itself a jurisdiction to annul an election, since no specific power was conferred on it under Article 162 (1) (b). A perusal of Articles 162 and 163 of the Constitution shows that the Articles clearly and sharply separate the respective functions of GECOM and the High Court in matters of electoral process.

Moreover, Article 163(1)(b) and Article 71 (1)(b) of the 1996 Constitution, coupled with the case of Gladys Petrie v. Attorney General (1968), were cited by the Chairperson in arriving at her decision that the court is the proper forum to pronounce on the credibility of an election.
The National Assembly (Validity of Elections) Act Cap 1:04 was also cited.
“The marginal note to section 3(1) of the Act enacts ‘Method of questioning the validity of election.’ According to section 57(3) of the Interpretation and General Clauses Act, Chapter 2:01, the marginal note shall be construed and have effect as part of the Act,” GECOM explained in their statement.
“Section 3(1) of the Act provides, ‘Any question referred to Article 163(1) (a), (b) and (c) of the Constitution may, in respect of an election referred to in Article 60(2) of the Constitution, and with a view of securing appropriate remedial orders, be referred to the court, and shall thereupon be determined by it in accordance with this Act, and every such reference shall be by petition (hereafter referred to as an election petition).”

Final report
In light of this, and Order No. 60 of 2020, the GECOM Chair has instructed Lowenfield to prepare and submit a final report pursuant to Section 96 of the Representation of the People Act, Chapter 1:03. While no definite timeline has been given, the CEO is expected to present the report to the Commission as soon as is possible.
The National Recount of ballots concluded on Monday last with the results for the final district to be counted, District Four, certified the next day. The data generated from the 2,339 Statements of Recount (SOR) show that the PPP/C received a total of 233,336 votes.
This is 15,416 more votes than their nearest rivals, APNU/AFC, which received 217,920 total votes. When one calculates using the Hare formula, it means that PPP/C would have secured 33 out of 65 seats in the National Assembly, and APNU/AFC would have secured 31.

Unwillingness to accept defeat
A Partnership for National Unity/Alliance For Change (APNU/AFC) has however indicated an unwillingness to concede defeat. In a live broadcast on Tuesday evening, APNU/AFC campaign manager Joseph Harmon sought to argue that the Chair’s decision was “convoluted”.
This is despite the fact that the Chair was very clear in her decision that it is up to a court to determine whether counted votes are valid or not. In addition, the Chair was clear that the many unsubstantiated allegations made by APNU/AFC must form the basis of an election petition.