Do not be used as an instrument of fraud – GECOM Chair tells COA via lawyer

Validity of Recount Order

…court can intervene to mandate statutory officers to follow law

Attorney for the Guyana Elections Commission (GECOM) Chair, Kim Kyte-Thomas solidly argued that Misenga Jones and her lawyers are essentially asking the Court of Appeal to aid and abet fraud and strongly urged the Judges to desist from becoming complicit.

Kyte-Thomas proffered her arguments on Saturday before Appellate Judges, Justices Dawn Gregory and Rishi Persaud along with High Court Judge, Justice Priya Sewnarine Beharry. She was at the time making oral submissions in the case of Jones where she is seeking to overturn the ruling of acting Chief Justice Roxane George.
Justice George dismissed Jones’ application for judicial review on the grounds that the issues were res judicata, which means that they have already been ventilated and pronounced upon by a competent court and cannot be relitigated. In total, Jones had sought 28 reliefs from the court but all, save and except for the issue of jurisdiction, were dismissed.
She had reiterated that Chief Elections Officer, Keith Lowenfield is not a lone ranger and is subjected to the direction of the Commission. Additionally, she expressly stated that the figures from the 33-day Caricom-observed National Recount should form the basis for the declaration of the results.

Jones bases her appeal on the grounds of whether Section 22 of the Elections Laws (Amendment) Act, No 15 of 2000 pursuant to which GECOM issued Order 60 of 2020 is Constitutional; whether Order 60 and by extension the recount results obtained therefrom are valid such as to permit a declaration of the March 2, 2020 election results based on the said recount results; whether the declarations of the Returning Officers for the Ten Electoral Districts made pursuant to Section 84 of the Representation of the People Act, Chapter 1:03 should be acted on or be set aside; and whether Section 18 of the Election Laws (Amendment) Act of 2000 is unconstitutional in light of Article 177 (2) (b) of the Constitution.

Kyte-Thomas called for the case to be dismissed forthwith since the issues have already been litigated via the Eslyn David and Ulita Moore cases. She told the court that almost all of the reliefs sought by Jones were also sought and decided upon in the case of Ulita Moore et al.

Instrument of fraud
The attorney stated that if examined and anaylsed carefully, one would come to the conclusion that Jones is asking the court to be a party of fraud and urged the Judges to desist from doing this. She furthered, by simply asking the court to order GECOM to use the figures from the March 13 declarations of the Returning Officer and invalidating the National Recount would be tantamount to the court being used as “an instrument of fraud.”

She explained that Order 60 of 2020 (the Recount Order) was birthed from the issues following the case of Reeaz Holladar et al – which was brought by the People’s Progressive Party/Civic (PPP/C) after RO Clairmont Mingo refused to use the Statements of Poll to tabulate the results for District Four (Demerara-Mahaica).
Mingo had tampered with the results of his Electoral District to reflect a win for the APNU/AFC coalition. In fact, on March 13, Mingo – in the execution of his statutory functions – declared that the APNU/AFC received 136, 057 votes in District Four when in fact the party accumulated just 116,941 votes.

The 33-day long national recount of the ballots exposed this clear attempt at altering the will of the electorate when it proved that Mingo inflated the Coalition’s number by 19,116 votes and deflated the PPP/C’s by just over 3000.
“A distinction has to be made between what is an elections dispute and what is GECOM is attempting to ensure and as you (the Court of Appeal) put it in Ulita Moore decision – GECOM managing the elections. A distinction has to be made. In Holladar, the Chief Justice made that distinction after she examined a line of cases. In Holladar, the Chief Justice said that the court can find jurisdiction to ensure that a statutory officer complies with clear provisions of the statute,” she said.

She reminded that even after the CJ had made specific orders in the case of Holladar compelling RO Mingo to use the Statements of Poll to tabulate his district results, he still acted in defiance of those orders. Kyte-Thomas noted that Mingo’s declarations were made in breach of the CJ’s orders and it caused GECOM to step in and agree to the National Recount.
She noted that contention that Order 60 along with Section 22 of the Election Laws Amendment Act are unconstitutional should be frontally examined by an elections petition as ruled by the Court of Appeal in the case of Moore.
Section 22 provides that: “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.”
Kyte-Thomas argued that any relevant subsidiary legislation in the foregoing provision would include – a subsidiary legislation made under the Elections Law (Amendment Act); a subsidiary legislation made under the ROPA; and a subsidiary legislation made under the National Registration Act.
Therefore, the GECOM Chair contended that the power given to the Commission under the said Section 22 to modify by order relates only to subsidiary legislation and not to any parent Act. Importantly, she cited Section 20 (1) (C) of the Interpretation and General Clauses Act, Cpt 2:01 which states: “Where subsidiary legislation is in excess of the power under which it is made, it shall nevertheless be valid to the extent to which it is not in excess of that power.”

Statutory, not
constitutional officer
It was furthered, given those provisions, Order 60 (the Recount Order) is therefore lawful and the results emanating from such is also within the confines of the law. On that ground, she explained that the CJ was correct to order CEO Keith Lowenfield to use the figures from the recount as a basis for his final report to be presented to the Commission since that does not amount to adjudicating on an elections dispute.
“The Chief Election Officer is not a constitutional officer. He is a statutory officer. He’s an election officer. He is not shielded by Section 141 and that is why the court intervened to tell him how to act. He can act lawfully. He can act in accordance with the laws of this land which right now include Order 60 and that was the court telling the Chief Election Officer to act in accordance with Order 60 of 2020 which had not been set aside by our apex court or any other court. Which, I daresay, cannot be aside in an application of this nature and this type,” Kyte-Thomas proffered.
She added that the CEO cannot flout the law nor can he act in excess of the law. His report must be contained and in accordance with the law which also includes Order 60.
She explained that the argument that GECOM was trespassing on Article 163 when it undertook the recount is one that is flawed and wholly misconceived, adding that GECOM is empowered to manage the election process and by ensuring that its officers (which includes the CEO) are acting in accordance with the statutory provisions, simply cannot be viewed as acting in excess or even trespassing on Article 163. The attorney furthered that the Constitution confers those powers on GECOM and pointed the court to Article 162 (1) (b) of the Constitution – the article gives GECOM its powers.
Kyte-Thomas noted that Jones’ appeal cannot and should not be entertained by the court since it is premature – in the light that the election process is still ongoing. It was noted that any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election can only lawfully form the basis of an election petition after the result has been declared.
Meanwhile, Attorney General Basil Williams shared an opposing view on the role of the CEO. He said that CJ George erred in law and misdirected herself when she interpreted the provisions of Article 177 (2) (b) and read into that provision words that “he cannot act on his own”. He furthered that CJ George also erred when she found that the CEO does not have a constitutional mandate and when she also held that 177 (2) (b) means that GECOM is not to act on the advice of any person or body external to the Commission.
He posited that the role of the CEO under the Constitution must be seen as separate from to the day to day administrative functions where he is under the directions and control of the Commission.
Williams submitted that the position of the GECOM Chair is merely formal and she should simply follow the advice given and act on it. He noted that the Chair has no other role other than acting on the advice of the CEO and that the failure of Justice Singh to act on Lowenfiled’s fraudulent report was an “abdication of duty.” (G2)