Lowenfield did not receive definition of “valid votes” from Court of Appeal ꟷ Harmon
In his written submissions to the Caribbean Court of Justice (CCJ), APNU/AFC’s Joseph Harmon, who had joined the proceedings as an intervener on behalf of the coalition, has confirmed that Guyana’s Court of Appeal did not, define the term “valid votes”.
The Appeal Court last Monday ruled in a case filed by APNU/AFC supporter, Eslyn David, that “more votes cast” means “more ‘valid’ votes cast” and that it is for the Guyana Elections Commission (GECOM), not the Chief Elections Officer, to make the determination of a final and credible result.
This meant that embattled Chief Elections Officer (CEO) Keith Lowenfield took it upon himself to unilaterally announce that he was mandated by his “constitutional” office after the Court of Appeal decision to not only determine what constitutes a valid vote but ‘credible votes’ and went ahead to disenfranchise over 115,000 voters in his recent report to GECOM. It was shown that Lowenfield is a statutory officer and not a constitutional one, subject to the direction of the GECOM Commission.
In fact, the unlawfulness of Lowenfield’s action of the mass disenfranchisement of voters was surprisingly supported in the APNU/AFC’s submission to the CCJ, which is hearing the People’s Progressive Party/Civic (PPP/C) challenge to the COA’s ruling.
Harmon’s submission filed on Sunday states “…the Court of Appeal made no determination as to whether the votes cast were valid or not, and, imposed no criteria by which the validity of votes would be determined. The Court of Appeal simply exercised its jurisdiction in a limited manner to interpret Article 177 (2) (b) of the Constitution to mean “more valid votes are cast”.”
It went on to say in the following paragraph that “…the effect of the Court of Appeal’s decision is that the election of a President will be determined on the basis of valid votes in accordance with the law. The determination of what constituted valid votes was not a matter that the Court of Appeal, properly, purported to exercise jurisdiction over…”.
However, Harmon’s submission to the CCJ contradicts a recent statement by the caretaker coalition. Following Lowenfield’s missive on Friday, the APNU/AFC in a subsequent statement backed the CEO, saying that he was clearly empowered and instructed by the Constitution and laws of Guyana, not by any other entity or person, and has discharged his functions within the ambit of the law.
The coalition’s missive further stated, “In keeping with the guidance set out by the Court of Appeal in Eslyn David v. Chief Election Officer, et al., and as he is required to do by the Representation of the People Act [at section 96], the CEO prepared and submitted his Election Report on 23rd June 2020.”
Last Tuesday, Lowenfield submitted his report to the Elections Commission, which the GECOM Chair has since rejected, with figures that he considers to be “valid”, showing the APNU/AFC in the lead with 171,825 votes while the PPP/C got 166,343 votes.
However, the certified recount figures, which has been deemed credible by all international and local observers, confirm that the PPP/C won the elections with 233,336 votes, that is, 15,416 more votes than APNU/AFC, which garnered 217,920.
This means that Lowenfield would have invalidated more than 115,000 votes in his recent report.
But many legal experts have contended that no law in Guyana’s Constitution empowers the Chief Elections Officer to invalid any vote or disenfranchise any voter.
Despite this, however, Lowenfield on Friday defended his contentious report, saying he executed his “constitutional duties” as the Chief Elections Officer.
“While the Commission makes certain policy decisions and provides guidance to the Chief Election Officer for implementation by the Secretariat, I have to execute my duties as a Constitutional Officer, particularly in the conduct of elections… At all times, I have acted in conformity with the laws and, therefore, my action cannot be ‘seen as clear act of insubordination’…,” he posited in a statement on Friday.
But legal luminaries have argued that the post of the Chief Elections Officer is a contractual statutory one and not a constitutional one. It was created by the Representation of the People Act (ROPA) and not the Constitution, which created the posts of only the GECOM Chair and Commissioners.
As such, the CEO does not possess the power to invalidate any vote. This can only be done via an elections petition to the Elections Court, that is, the High Court after the declaration of the final elections results.
In furtherance of this, Section 18 of the Elections Law (Amendment) Act 2000 states: “The Chief Election Officer and the Commissioner of Registration shall notwithstanding anything in any written law be subject to the direction and control of the Commission.”
Moreover, part of Recount Order 60/2020 states at 14: “The Commission shall, after deliberating on the report at paragraph 12, determine whether it should request the Chief Election Officer to use the data compiled in accordance with paragraph 12 as the basis for the submission of a report under Section 96 of the Representation of the People Act Cap 1:03, provided that the Commission shall, no later than three (3) days after receiving the report, make the declaration…”
And then at 15: “For the avoidance of any doubt, the Chief Election Officer and every person appointed or authorised to perform any act or functions by virtue of this Order, are and shall remain subject to the general supervisory power of the Commission.”
In fact, in a statement on Friday, PPP/C argued that it is clear from these citations that Lowenfield is subjected to the direction and control of the Commission at all material times and has abysmally failed to do so.
“That the Commission enjoys an overarching power over the entire electoral process and its officers, including the Chief Election Officer, to rectify any wrong or illegality or irregularity committed is expressed in both Article 162 (1) (b) of the Constitution and Section 22 of the Election Laws Amendment Act,” the party contended.
Article 162 (1) (b) clearly states that the Election Commission shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid (ie the administrative conduct of elections).