Machinery of election petition cannot be usurped by GECOM – senior counsel tells COA judges

APNU/AFC petition to stop declaration

…court to rule on Monday

The Appeal Court will, on Monday, hand down its judgement in the case seeking to block the Chief Elections Officer from presenting the results of the March 2 General and Regional Elections. The declaration which the APNU/AFC is attempting to block would see People’s Progressive Party/Civic’s (PPP/C) Dr Irfaan Ali being Guyana’s ninth Executive President.

Justice Dawn Gregory

The Notice of Motion filed by A Partnership for National Unity/Alliance For Change (APNU/AFC) supporter, Eslyn David, named Chief Elections Officer (CEO) Keith Lowenfield; GECOM Chair (retired) Justice Claudette Singh; the Guyana Elections Commission, and Attorney General of Guyana as respondents.
On Friday at the case management hearing, the Appeal Court granted permission for several political parties – the People’s Progressive Party/Civic (PPP/C), the three-joiner parties: A New and United Guyana (ANUG), Liberty and Justice Party (LJP) and The New Movement (TNM); as well as The Citizen Initiative (TCI) and Change Guyana (CG) – to join the proceedings as respondents.

Justice Rishi Persaud

The case is being presided over by Appellate Justices Dawn Gregory and Rishi Persaud along with High Court Judge Brassington Reynolds.
On Saturday, the attorneys for the applicant, respondents and the joint parties to the proceedings presented their oral submission via Zoom conferencing.
Leading the applicant’s defence is Trinidad and Tobago’s Senior Counsel John Jeremie and supported by Mayo Robertson, Keith Scotland and APNU/AFC candidate Roysdale Forde.
During Saturday’s proceedings, SC Jeremie argued that his client is seeking that the court interprets the Constitution and determine whether more votes cast can be considered as more valid votes cast. David’s application was filed pursuant to Article 177 (4) of the Constitution of Guyana.

Justice Brassington Reynolds

Article 177 (4) states: “The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as the question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.”
In oral submissions to the court, he furthered that on the issue of jurisdiction, the court it rightly empowered by Article 177 (4). He added that what they are seeking, in principle, is an interpretation of the Constitution.
Jeremie told the court that the Elections Commission has the power to invalidate votes and that is exactly what CEO Lowenfield did, when he revised the figures of the National Recount to reflect what he deemed to be ‘valid’ votes, but added that the CEO is now being prevented from doing that. He urged the court to grant his client the relief being sought so as to ensure that the results of the elections are credible.

Senior Counsel Douglas Mendes

In response to the written submission by Counsel for the applicant, attorney for PPP/C’s Presidential Candidate, Dr Irfaan Ali, and General Secretary, Bharrat Jagdeo, Trinidadian Senior Counsel Douglas Mendes argued that the Appeal Court has no jurisdiction to hear the case since the question of credibility is best addressed via an elections petition in the High Court.
This argument was supported by the smaller parties as well as the Chair of GECOM, who via attorney Kim Kyte urged the court to dismiss the matter forthwith since it is misconceived. She identified that the application speaks to the declaration of Dr Ali as President but reminded that the seat is still being occupied by David Granger.

Justice Reynolds sought clarification from Kyte on whether the recount order sought to establish credibility to which she responded in the affirmative but furthered that it is still a matter for the High Court since the Appeal Court can only interpret the Constitution and not the recount order.

Senior Counsel John Jeremie

She argued that the recount order cannot alter the Constitution of Guyana to give GECOM the power to determine the credibility of an elections and as such noted that she and her client believes that the issue can be ventilated via an election petition.
In her written submission to the court, Kyte submitted that the duty of the court is not to re-write the Constitution but to interpret what is already stated in the Constitution clearly. The words themselves best declare the intention of the framers.
She argued that Article 177 (4), under which the Notice of Motion was filed, clothes the Court of Appeal with a “narrow special exclusive jurisdiction” to hear and determine any question as to the validity of an election of a President in so far as that question turns upon the qualification of any person for election or the interpretation of this Constitution.

Mere allegations
Dr Ali’s lawyer, Senior Counsel Mendes told the court that GECOM has considered the APNU/AFC’s allegations of anomalies (dead and migrated person voting) but pointed that the Commission has identified that it cannot vest itself the power to investigate and nullify the elections.

GECOM Chair’s attorney,
Kim Kyte

He added that Lowenfield went beyond his boundaries when he sought to determine the credibility of the elections and revise the figures from the National Recount.
Lowenfield in his summary report to GECOM had used the unsubstantiated allegations made by the APNU/AFC of dead and migrated voters to disenfranchise thousands of Guyanese and provided figures, which he concluded were credible. His calculation awarded the coalition 125,010 votes and the PPP/C 56,627 votes.
Kyte in her submissions questioned if GECOM is to embark on this credibility exercise then what basis should be used to determine the issues of validity and credibility. Meanwhile, Mendes posited that the allegations of anomalies are exactly what they are – mere allegations.

GECOM Chair, Retired Justice Claudette Singh

According to Mendes, the machinery of an election petition cannot be usurped by any action of GECOM or the Chief Elections Officer or of the Court of Appeal acting under Article 177 (4), which is precisely what the applicant is asking the court to do.
He argued that the applicant and her supporter, caretaker Attorney General Basil Williams, seemingly shied away from mentioning the concocted numbers of District Four (Demerara-Mahaica) Returning Officer Clairmont Mingo. Mingo conjured numbers and added over 19,000 votes to the APNU/AFC while taking over 3000 from the PPP/C. The APNU/AFC have been calling for Granger to be sworn in using Mingo’s numbers.
Asked by Justice Gregory to explain why the court had jurisdiction to determine the irregularities with Mingo’s case and now it does not with the alleged irregularities, Mendes responded indicating that the issues are addressed. He added, however, that the Commission does not have the power to hold court and determine the basis and investigate the alleged anomalies.
He furthered that the High Court action in Mingo’s case saw the presentation in undisputed evidence of tampering with the numbers on the Statements of Poll whereas in this case there was widespread international outcry. He argued that the will of the people must be respected and that the will reflects a PPP/C victory.
The Senior Counsel told the court that the Commission considered Lowenfield’s report on the recount but reiterated that they lacked the power to investigate, hence the reason he was sent to prepare the final report.
“This test of validity and credibility which is not found in the Constitution, cannot be met on the basis of the evidence which Ms Eslyn David has placed before the court… She also references the report of the CEO which also lists various complaints which the CEO had apparently observed. None of this is evidence of invalidity. It is evidence only of the views and opinions which certain persons hold. It is impossible for the Court of Appeal, receiving evidence in such a summary fashion, to make any sort of determination as to whether any invalidity occurred,” Mendes submitted to the court.

Interpretation and not vitiation
However, Williams presented that the Commission can decide the credibility of the elections and based on Lowenfield’s report, the elections should be nullified. This contention saw Attorney Jeremie distancing themselves from Williams, who supported their argument, since David is seeking interpretation and not vitiation.
The Pike Street, Sophia resident is seeking a number of reliefs from the court. She is asking that the court make a declaration that GECOM has failed to “determine a final credible count and or the credibility of the result of the General and Regional Elections” in accordance with order No 60 of 2020 and the amended Order dated the 29th day of May 2020.
David also wants the court to issue an order for an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution. Article 177 (2) (b) states: “…where there are two or more Presidential Candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential Candidate shall be deemed to be elected President and shall be so declared by the Chairman of the Elections Commission…”
Moreover, the coalition supporter is also asking the court for an order restraining the CEO from “complying with the Direction of the Chairman of the Guyana Elections Commission… to submit to the Guyana Elections Commission an Elections Report under Article 177 (2) (b) of the Constitution of Guyana [and under Section 96 of the Representation of the People Act] without the Guyana Elections Commission determining the final credible count and or the credibility of the General and Regional Elections…”
She also wants an order restraining the CEO from submitting to GECOM, his Elections Report which contains votes that are not valid and credible within the meaning of order No 60 of 2020, and under Section 96 of the Representation of the People Act.
Lowenfield’s report, which he failed to submit, would have paved the way for the PPP/C to be declared the winner of the March 2 elections and Ali to be sworn in as Guyana’s ninth Executive President.
Upon conclusion of the arguments on Saturday, Justice Gregory informed the parties that the court will issue its ruling at 13:30h on Monday.