DPP objects to Lowenfield being added to case seeking release of SoPs, SoRs
Electoral fraud cases
…says CEO’s application hangs on “tenuous thread”
A case mounted by Chief Elections Officer (CEO) Keith Lowenfield opposing an application filed by the Director of Public Prosecutions (DPP) Shalimar Ali-Hack, and Commissioner of Police Nigel Hoppie, who are seeking a court order to obtain certified copies of the Statements of Poll (SoPs) and Statements of Recount (SoRs) from the March 2, 2020 General and Regional Elections is hanging on “tenuous thread”.
So contends Attorney-at-Law Darshan Ramdhani, who on behalf of the DPP and Top Cop has asked Chief Justice Roxane George, SC, to dismiss Lowenfield’s case. Pursuant to the Representation of the People Act (RoPA), Lowenfield is the sole custodian of the SoPs and SoRs.
Ahead of the hearing into APNU/AFC election petition #88 which was dismissed last month, Justice George ordered the Guyana Elections Commission (GECOM) to hand over the original copies of the SoPs and SoRs to the Registrar of the Supreme Court, Suenna Lovell, for safekeeping. That order was complied with.
Following the conclusion of the March 2020 General and Regional Elections which were embroiled in controversy, several high-ranking GECOM officials were investigated by the Guyana Police Force. Apart from Lowenfield, the others charged are Deputy CEO Roxanne Myers, and Region Four (Demerara-Mahaica) Returning Officer Clairmont Mingo.
It was the office of the DPP that recommended that the trio be charged. Sometime after, the Top Cop wrote to the Registrar requesting certified copies of the documents but was informed by her that she is unable to provide them without a court order.
As such, Ali-Hack and Hoppie filed the application seeking orders directing the Registrar to have certified copies of the documents delivered to the Attorney General, Anil Nandlall, SC, forthwith. The Attorney General, GECOM, and the Registrar of the Supreme Court are the named respondents in the DPP and Commissioner of Police’s application.
They argued that the basis for their application is that the SoPs and SoRs are needed for the fair hearing of the charges as they constitute relevant evidence for the prosecution to prove the commission of the offences by Lowenfield, Myers, and Mingo. But Lowenfield contended that other than for the purposes of an election petition, he has no authority under the law to release the election documents.
Ramdhani is asking the Chief Justice to dismiss Lowenfield’s application to be added as a party to the proceedings. The lawyer contended that Section 102 and Section 19 of RoPA, which Lowenfield relies on, does “not at all confer any interest in Lowenfield as Chief Elections Officer that can be grounded in the Civil Procedure Rule to allow him to join in this proceedings.”
“This is a public document we are dealing with…There is nothing else for Lowenfield to hold on to in relation to these documents. No issues of confidentiality, no issues of secrecy, no issues of privilege remain or exist. So, when you take away the tenuous thread on which he intends to hang this application, that is all that is left…” Ramdhani contended.
According to him, while there are “many, many” statutes that gave legal custody of records in certain entities to a named officer, “because they have custody means absolutely nothing” since the provisions of the Criminal Law (Procedure) Act is constitutionally recognised and enforced.
By the common law and Section 50 of the Criminal Law (Procedure) Act, he said that the Commissioner of Police and any member of the Police Force have the lawful right to collect and recover all documents and property which are relevant to the investigation and prosecution of any criminal offence.
“The State or the DPP and Police perform a public duty for the benefit of the public and they can rely on principles of the common law and statute law that is Section 50 of the Criminal Law (Procedure) Act to search for, and secure any document; so, they are allowed to use it.”
Ramdhani submitted that instead of seeking a High Court order for the release of the SoPs and SoRs, the
Police could have obtained a search warrant from a Magistrate to enter and search Lowenfield’s premises since he is currently the defendant in a criminal matter.
“This gentleman is charged as a defendant in the court. This gentleman is now here trying to stop the SoPs from being released,” the lawyer said, adding that “those rights he [Lowenfield] is claiming are only in relation to the civil election petition jurisdiction of the court and have nothing to do with a criminal proceeding.”
“Once the court comes to that conclusion this court will find that there is no interest at all in for [him] to be allowed to be joined in these proceedings,” Ramdhani said in asking Justice George to dismiss the CEO’s application.
Hughes, on the other hand, is contending that the application filed by the DPP and Commissioner of Police is misconceived since his client no longer has custody of the SoPs and SoRs. He said that as a consequence of the Chief Justice’s order dated January 18, 2021, for the documents to be handed over to the Registrar, Lowenfield “has been divested of any legal jurisdiction” over the SoPs and SoRs.
“This application is misconceived. GECOM does not have custody of these documents. The registrar is the court. And unless the Attorney General is representing the court, he would not be a proper party [to these proceedings]. You have clarified that the court has lawful possession of these documents. So, the court is the legal body that has possession of the documents,” counsel told Justice George.
Moreover, Hughes argued that other than for the purposes of an election petition, Lowenfield, in his capacity as CEO, has no authority to release the documents for what the DPP and Top Cop are requesting.
He said, “The purpose for which he has them is for the purpose for the conduct of the election. He does not have it for any other purpose. If the Police want copies, the CEO can only act as so far as to the powers vested in him under the [RoPA].
“…And that means he cannot release the documents. He does not have the jurisdiction to give it to anybody other than for the purpose he has them for.”
Amplifying his point, Hughes relied on Section 141 of RoPA which states, “In any indictment, information or complaint for an offence in relation to ballot boxes, ballot papers, and other election material, the property in them may be stated to be in the Chief Election Officer.”
Questioned by the Chief Justice as to whether his client can release the SoPs to the Police given the framework of the above provision, Hughes replied, “I suppose”, as he urged the court to grant Lowenfield’s application so that he can expand on his submissions.
The Chief Justice will deliver her ruling on Lowenfield’s request to be joined in the case on May 27. (G1)