…upholds Chief Justice’s ruling that election petition lacks merit
The Court of Appeal has upheld a decision made by Chief Justice (ag) Roxane George, SC, that Election Petition No 88, which was filed by two Opposition A Partnership for National Unity/Alliance For Change (APNU/AFC) supporters, lacks merit.
Justice Yonette Cummings-Edwards, acting Chancellor of the Judiciary, and Justices of Appeal Dawn Gregory and Rishi Persaud delivered the unanimous decision on Monday.
That election petition was dismissed by Justice George over two years ago, on April 26, 2021.
The main parliamentary Opposition had appealed Justice George’s ruling in Claudette Thorne and Heston Bostwick v Keith Lowenfield and others, arguing that the Guyana Elections Commission’s handling of the March 2, 2020 elections had violated electoral laws and the Constitution of Guyana in serious enough ways that the results of the election should be deemed void.
Court of Appeal Judges: Chancellor of the Judiciary (ag), Justice Yonette Cummings-Edwards (extreme left) and Justices of Appeal Rishi Persaud and Dawn Gregory
The primary contention of the petitioners was that Order No 60 ordering the vote recount was issued by GECOM in violation of Section 22 of the Election Laws (Amendment) Act 2000.
Section 22 states as follows:
If any difficulty arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.
In response, the respondents, including GECOM, Attorney General Anil Nandlall, SC, and Vice President Bharrat Jagdeo, argued that GECOM was in fact authorised by the aforementioned Act to handle any issues/difficulties that may come up throughout the electoral process, including by enacting Order No 60. In response, the petitioners contended that any such issues should have been resolved through an election petition rather than by an order made under Section 22.
They argued that since Parliament could not have granted GECOM such authority, Section 22, which makes this possible, is illegal.
High Court decision affirmed
Justice Gregory, in affirming the acting Chief Justice’s decision, said: “I agree with the Chief Justice’s finding that GECOM had not unlawfully utilised its powers when it enacted Order No 60 and it held the recount. I have concluded that the Chief Justice’s decision should be affirmed and the appeal should be dismissed.”
Meanwhile, Justice Cummings-Edwards, while alluding to the provisions of Section 22, said, “So, that removing or the removal of the difficulty clause or sunset clause as it is referred to, does empower GECOM here to make subsidiary legislation or provisions to remove any difficulties which may have arisen in executing its functions.”
“There is no evidence on record which will even remotely suggest that an election has been, or may have been, affected by an unlawful act…,” wrote Justice Persaud in his judgment.
Essentially, the Court of Appeal decided that GECOM had the authority to implement Order No 60 in order to ensure that the results were timely and fair, as well as to take any other necessary action to address the issues that developed during those elections.
Thorne and Bostwick were consequently ordered to pay the four respondents, who participated in submissions, a total of $600,000 in costs ($150,000 to each of the four parties), as the appellate court dismissed their appeal. The other respondents have to bear their own costs.
There were about 13 respondents, including several small parties that contested those elections.
In favour of Recount Order
Following discussions with the previous Caribbean Community (Caricom) Chairperson, the Prime Minister of Barbados, Mia Mottley, then Leader of the People’s Progressive Party/Civic (PPP/C), Bharrat Jagdeo and then President David Granger, Order No 60 was implemented by GECOM.
After controversy erupted over the declaration made by then Region Four (Demerara-Mahaica) Returning Officer (RO) Clairmont Mingo, the Order launched the national recount procedure to resolve difficulties that arose during the tabulation of votes.
Every party listed was in favour of the procedure to break the electoral impasse.
Failed to prove case
The Chief Justice (ag) had made it clear that Article 162 of the Constitution fully empowered GECOM to take whatever action was necessary to conclude the elections, including the recount.
Justice George had noted that had there been no difficulties with the election, then GECOM’s creation of Order No 60 would have been illegal.
However, she pointed out that even the election petition highlights the difficulties GECOM faced in arriving at a valid election result. Among her findings was that the petitioners, Bostwick and Thorne, failed to prove their case that there were substantial irregularities.
“Ultimately, despite the reliefs sought, this petition does not rely on the second limb of Article 163 (b) [of the Constitution] and Section 30 of the National Assembly Validity of Elections Act, Chapter 104, that there have been unlawful acts or omissions affecting the results. Indeed, evidence that there were unlawful acts that affected or may have affected the result of the election have not been provided in this petition,” Justice George had said.
“To exercise general direction, and supervision over the elections, GECOM had to ensure the lawful and proper implementation of the [Representation of the People Act]. This was done lawfully by GECOM via Order No 60, enabling it to issue instructions and take action as appeared necessary to resolve the controversies, as part of its [duty] to complete the election process.”
“So, I hold that both Section 22 and Order No 60 are intra vires (inside the powers); neither provision offends the Constitution,” Justice George had declared.
Election Petition #99
About the Opposition’s second election petition, Petition #99, the Caribbean Court of Justice (CCJ) found last year that the Court of Appeal erred when it took jurisdiction to hear the matter.
Petition #99 was based on allegations of several irregularities in the conduct of the elections including: “widespread voter impersonation; widespread noncompliance with documentation; the flawed voters’ list; and several other irregularities”, according to court documents.
The Chief Justice had dismissed that petition on the grounds of improper service to former President David Granger. Attorney General Anil Nandlall’s argument before the CCJ was that having not been determined on its merits, the petition could not be appealed.
The ruling by the Trinidad-based court meant that the Court of Appeal’s decision was quashed, effectively restoring Justice George’s January 18, 2021 decision to dismiss the petition and that the petitioners Monica Thomas and Brennan Nurse had exhausted all their rights to appeal. (G1)
