GECOM has no power to investigate APNU/AFC allegations – Nandlall

…can only be addressed via elections petition

Chair of the Guyana Elections Commission (GECOM), Retired Justice Claudette Singh would be in serious violation of the Constitution if she decided to forge ahead with a decision to ask the A Partnership for National Unity/Alliance For Change (APNU/AFC) to provide proof of electoral fraud to the Commission.
This is according to former Attorney General and People’s Progressive Party/Civic (PPP/C) Executive, Anil Nandlall.

Nandlall, on Saturday, told reporters that the Constitution gives exclusive power to the Judiciary to address the concerns of electoral fraud.

General Secretary of the APNU, Joseph Harmon, according to the State-owned newspaper, wrote to Justice Singh parroting the allegations of dead and migrated persons voting in the March 2 General and Regional Elections. Ironically, the APNU/AFC has been claiming victory from the inception using the doctored figures presented by Electoral District Four (Demerara-Mahaica) Returning Officer, Clairmont Mingo.

However, since the National Recount of the votes commenced, the party started throwing allegations of dead and migrated persons voting without even providing evidence. Some of the people alleged to have migrated have come forward to clear the air.
In response to Harmon’s letter, according to reports, Justice Singh invited him to provide evidence of such allegations. However, this is not sitting well with the PPP/C since they are of the view that the recount process does not cater to that.

Fundamental difficulty
“We in the PPP have a fundamental difficulty with this development because what we are engaged in here is a recounting of the ballots as is stated in the order (gazetted by GECOM). It says on the 03rd of April a decision was taken by GECOM to recount the ballots cast at the March 2 elections and the rest of the order contains a procedure of how that recount should take place,” Nandlall stated.
He added that a recount is done in accordance with certain legal rules and those rules are set out in the provisions of the Representation of the People Act.
“Nowhere in the order is there any provision for anyone to make allegations of the type that are being made and worst yet for there to be some proving and disproving of those allegations. It is not that we are opposed or we have anything to hide but this exercise is simply not one that caters for that and anytime GECOM goes outside of the scope of that recount, GECOM would be exceeding its jurisdiction. GECOM would be acting without jurisdiction. GECOM would be acting ultra vires and GECOM would be violating the very order that GECOM published and undertook to be governed by,” Nandlall argued.
He reiterated that there are no provisions in the recount order for addressing or raising the allegations. Nandlall told reporters that initially, the PPP/C raised objections to the allegations by the incumbent but was assured that those allegations are just recorded.
“We initially objected and we subsided our objections because we were informed that they are allegations only and they would be recorded in an observation report for the record…and perhaps at another forum and in another process, those allegations can be addressed,” he noted.

Jurisdiction
However, Nandlall said with the current actions of the GECOM Chair, it puts those assurances in limbo, noting, “by inviting evidence is not only lending credence to those allegations but the Chairperson is now expanding the scope of this recounting exercise far outside its parameters and that is wrong. It is unlawful.”
He reminded that GECOM’s jurisdiction under the Constitution is to conduct and manage elections as well as conducting a recount if the need arises. He added that Article 163 of the Constitution address the issue of jurisdiction to determine allegations.
Article 163 (1) states: “Subject to the provisions of this Article, the High Court shall have exclusive jurisdiction to determine any question – (a) regarding the qualification of any person to be elected as a member of the National Assembly; (b) whether – (i) either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission; (ii) the seats in the Assembly have been lawfully allocated; (iii) a seat in the Assembly has become vacant; or (iv) any member of the assembly is required under the provisions of Article 156 (2) and (3) to cease to exercise any of his functions as a member thereof; (c) regarding the filling of a vacant seat in the Assembly; or (d) whether any person has been validly elected as Speaker of the Assembly from among persons who are not members thereof or, having been so elected, has vacated the office of Speaker.”
Nandlall said those powers by the High Court must be exercised in conjunction with the National Assembly Validity of Elections Act Chapter 1:04. He also sought to remind that the supreme law of the land does not invest, in GECOM, the power to investigate allegation or to prove/disprove allegations.
“Those are issues that the Constitution vested or vests in the Judiciary, exclusively. It must be ventilated in accordance with the provisions of the National Assembly Validity of Elections Act and the procedural vehicle to be used is an elections petition.

In any event, practically and pragmatically, GECOM does not have the resources, personnel and otherwise to hear and determine those complaints. You have to be trained. Those complaints have to be dealt with in accordance with the rules of evidence in a court of law and a particular standard of proof have to be established. GECOM is moving in a very dangerous direction by going along this path,” Nandlall argued.
Nandlall said that his party is not afraid of any form of scrutiny nor do they have anything to hide but noted that they would not sit by idly and allow an illegality to be executed.
The PPP/C intends to dispatch a letter to Justice Chair reminding her of the provisions and limitations of GECOM’s powers.
“The Constitution itself has invested that power that includes power of hearing and determining allegations to an institution called the Judiciary, exclusively too. The same exclusivity that GECOM enjoys in relation to the management of elections, the same exclusivity the Constitution invests in the High Court to determine allegations of irregularities and illegalities relevant to an election. The separation of powers doctrine will prohibit GECOM from trespassing on the functional domain and the functional province of the Judiciary,” Nandlall noted.