Motion for dismissal: Lowenfield withdraws case to block GECOM Commissioners from exercising constitutional power

Chief Elections Officer (CEO) Keith Lowenfield on Monday withdrew an application he filed at the Demerara High Court to block Government-nominated GECOM Commissioners Bibi Shadick and Sase Gunraj from voting on a motion they tabled calling for his dismissal. Applying to withdraw the case was his lawyer, Nigel Hughes, who indicated that certain circumstances have overtaken his client’s application.

As a result, High Court Judge Jo Ann Barlow discontinued the case. She also discharged an injunction that was granted on July 29 restraining GECOM from entertaining any deliberations on the motion until the court rendered its ruling which was scheduled for Monday.

The termination of the case comes less than one week after Shadick and Gunraj submitted an amended motion to the court which is now calling for Lowenfield to be fired in accordance with Clause Nine of the terms of his employment contract, instead of him being summarily dismissed pursuant to Clause 10.
In an affidavit, GECOM Chairperson Justice (retired) Claudette Singh had outlined that the CEO’s contract of employment provides two bases for termination.
She firstly pointed to Clause Nine which states that his employment may be terminated by way of three months’ notice in writing on the following grounds: (1) If in the reasonable opinion of Guyana Elections Commission, the Chief Elections Officer/Commissioner of Registration is guilty of misconduct; (2) If in the reasonable opinion of Guyana Elections Commission the Chief Elections Officer/Commissioner of Registration has failed to comply with the terms of this contract, or (3) Where in the reasonable opinion of Guyana Elections Commission the Chief Elections Officer/Commissioner of Registration is in breach of any clause or obligation in this contract.

The second basis is pursuant to Clause 10 which states his contract may be terminated without notice for gross misconduct, provided that, he must be given a written notice setting out clearly the reason for the termination of his contract and be allowed to respond.
Given that the motion was amended to include Clause Nine, GECOM’s lawyer Kim Kyte-Thomas had submitted that Lowenfield’s application had no merit and as such urged the court to dismiss it.
In June, PPP/C Commissioners Gunraj and Shadick tabled a motion containing 20 grounds on which they called for the CEO’s dismissal. The Election Commissioners, who are both lawyers, had submitted that Lowenfield breached his functions, duties, responsibilities, and obligations regarding the March 2020 General and Regional Elections.
But in seeking to have Shadick and Gunraj blocked from voting on the motion, Lowenfield had argued that their participation in the deliberations of their complaint against him is in breach of the rules of natural justice. He had argued too that their participation in the deliberations on their own complaint infected the deliberation of GECOM with bias.
The CEO had contended that their participation in the hearing of the motion is a breach of the implied terms of his employment because he is entitled to a fair hearing of his response to any complaint of gross misconduct made against him. Against this backdrop, Lowenfield had asked the High Court to grant an order restraining Gunraj and Shadick from voting on the motion to dismiss him.

Constitutional duties
Attorney General Anil Nandlall had previously reminded that the plethora of legal cases that followed the 2018 No-Confidence Motion (NCM) established the independence of GECOM from outside interference. Moreover, he noted that it is a common practice whether at GECOM or in the National Assembly that those moving a motion are the ones who must debate it.
The AG noted that GECOM is insulated from “the direction or control of any other person or authority” by the Constitution. Nandlall cited Article 226 (1) of the Constitution of the Guyana, whereby GECOM is empowered to make rules and regulate the procedure of the Commission. According to the AG, it is important that logic and common sense follow the law.
The AG also noted that the Commission is empowered to regulate its own procedure, adding that Article 226 of the Constitution sets out GECOM’s process for determining questions and voting between the six Commissioners and the casting vote of the Chairman.
The Attorney General had also cited Article 161 of the Constitution, which empowers GECOM with responsibility for its officers in the Secretariat. Nandlall noted that Article 161 (A) (1) specifies that GECOM has disciplinary control over its staff.
Following the tabling of the motion, GECOM Chairperson wrote to Lowenfield, asking him to show cause why he should not be dismissed. The CEO was later instructed to proceed on annual leave pending an investigation into the allegations against him and a final decision on his employment.
Similar motions have been tabled by the Government-nominated Commissioners calling for the dismissal of Deputy Chief Elections Officer Roxanne Myers, and Region Four Returning Officer Clairmont Mingo, who like Lowenfield, are accused of attempting to rig the March 2020 General and Regional Elections in favour of the then caretaker APNU/AFC regime.
Hughes had previously stated that the court decisions on Lowenfield’s application would apply to the motions seeking the dismissal of Myers and Mingo.
Meanwhile, the chambers of the Director of Public Prosecutions (DPP) have hired a team of special prosecutors to prosecute the electoral fraud charges against Lowenfield, Myers, Mingo, GECOM clerks Denise Bob-Cummings and Michelle Miller, GECOM Elections Officer Shefern February and Information Technology Officer Enrique Livan, APNU/AFC activist Carol Joseph, and People’s National Congress Reform (PNCR) Chairperson and former Public Health Minister Volda Lawrence.
The more than 25 matters are currently before three Magistrates – Chief Magistrate Ann McLennan and Magistrates Sherdel Isaacs-Marcus and Leron Daly.
Lowenfield’s election report claimed that the APNU/AFC coalition garnered 171,825 votes while the PPP/C gained 166,343 votes at the March 2, 2020 National and Regional Elections.
How he arrived at those figures is still unknown as the certified results from the recount exercise supervised by GECOM and a high-level team from the Caribbean Community (Caricom) pellucidly showed that the PPP/C won with 233,336 votes while the coalition garnered 217,920.
The recount exercise also proved that Mingo heavily inflated the figures in Region Four – Guyana’s largest voting District – in favour of the then caretaker APNU/AFC Government. (G1)