Only recount figures can be used for elections declaration – Chief Justice

Validity of Recount Order

…10 ROs’ declaration set aside, CEO cannot be “lone ranger”
…CEO’s, AG’s arguments “hopelessly flawed” – CJ rules

Chief Justice Roxane George on Monday ruled that Order 60 (the recount order) which establishes how the national elections recount process should unfold that was challenged by APNU/AFC supporter, Misenga Jones, was in fact properly constructed.

This means that the case Misenga Jones v GECOM et al, which sought to block the Guyana Elections Commission from declaring the elections based on the National Recount figures, claiming that the order was invalid, was dismissed.
Jones approached the court for judicial review. She sought several orders from the court inclusive of a declaration that the gazetted Order 60 of 2020 and the recount results extracted therefrom are invalid and unconstitutional; a declaration that the report required by the CEO under Section 96 of the Representation of the People Act must be based on the votes counted and information furnished by the ten (10) Returning Officers from their respective 10 Electoral Districts which were submitted to the CEO on March 13; a declaration that the CEO is not subjected to the directions of the Chair of the Commission on the contents of his report among others.
In total, Jones through her attorneys – Trinidadian Senior Counsel John Jeremie, Roysdale Forde, Keith Scotland, Mayo Robertson and Rondelle Keller – sought 28 reliefs from the court.
The CJ delivered her ruling, via video conferencing, shortly after 16:00h on Monday. Justice George said that contrary to the submissions by Attorney General Basil Williams and Chief Elections Officer Keith Lowenfield that the Caribbean Court of Justice invalidated the recount in the ruling of Irfaan Ali et al v Eslyn David et al, their contention was flawed since the Court, in fact, upheld the validity of Order 60.
“The interpretation of the CCJ decision by the applicant, the CEO and the AG is hopelessly flawed. The CCJ judgment leads to the ineluctable conclusion that the recount votes are ex facie valid. Hence the view expressed that any irregularities would have to be addressed via an election petition,” she said in her judgement.
Further expounding, Justice George said that the entirety of the CCJ’s judgement should be read and endorsed the Chair’s submission that cherry-picking is not the way to go. She furthered that the section on which Jones sought to rely was, in fact, explaining the ruling of Guyana’s Court of Appeal Judge, Justice Brassington Reynolds in the case of Eslyn David.
Justice Reynolds had ruled that Order 60 created a new electoral regime and that the election of a President and members to the National Assembly must be treated with separately. The CJ noted that the section on which Jones’ lawyers relied on, was basically further explaining the CCJ’s views of what was termed as a “hybrid presidential system.” She furthered that the immediate paragraphs go on to endorse Order 60 as only being birthed from the March 2 General and Regional Elections.
She found that the CCJ went on to highlight that Order 60 was introduced to cater for the various disputes and contentions that arose after polling day ie the fraudulent declaration of District Four (Demerara-Mahaica) results by Returning Officer Clairmont Mingo.
“The intention of Order 60 was to provide an open, transparent, and accountable recount of all the votes cast as well as to assuage the contestations among the various parties, determine ‘a final credible count’, and remove certain difficulties or fill certain gaps in connection with the application of the provisions of the Representation of the People Act.”
Justice George furthered that Jones’ view that the letters written to the CEO, by the Chair, instructing to prepare and present his report using the valid votes from the recount are invalid, in fact, they come into conflict with the assertions of the CCJ as it relates to the validity of votes.
The CCJ had determined that validity can only mean that votes that, on the face of it, are valid – after the weeding out of spoilt or rejected ballots. In keeping with that, the CJ noted that as a result, Jones’ contention “has no merit”.

“Lone ranger”
Jones’ attorneys had contended that the 10 declarations made by the Returning Officers are still valid on the grounds that GECOM cannot wantonly invalidate votes. They had argued that the declarations are still valid and subsisting, and though held in abeyance in the purported National Recount, were never invalidated or set aside by any court of competent jurisdiction.

In their submissions, the argument was brought that the Chair’s setting aside of those declarations and instructing CEO Lowenfield, under Section 18 of the Elections Law (Amendment) Act, to execute his functions is misplaced. Section 18 states: “The Chief Election Officer and the Commissioner of Registration shall notwithstanding anything in any written law be subjected to the direction and control of the Commission.”
In fact, the applicant told the court that the Commission’s control does not extend to Lowenfield’s “constitutional” mandate as outlined in Article 177 (2) (b) and Section 96 of the Representation of the People Act.
In this regard, the CJ ruled that given the decisions of the Court of Appeal and the Caribbean Court of Justice (CCJ), the recount cannot be considered to be invalidated.
“In this context, Section 84 (1) declarations can no longer be considered useful. Hence, while the CEO may be expected to act independently, he cannot be a ‘lone ranger’ so to speak. I agree with the submission that Article 177 (2) (b) can be construed to mean that GECOM is not to act on the advice of any person or body external to the Commission,” she found.
Justice George disagreed with the submission of Lowenfield having a constitutional mandate under Article 177, rather it is the Chair and Commission that has the mandate. She explained that the CEO is a functionary of the Commission and therefore cannot act on his own while adding that he has certain duties with regards to tabulating results as provided for in Section 96 of the Representation of the People Act.

Only recount results valid
The CJ stated that while the CEO is solely in charge of producing his report, one can expect that the logical thing is that he receives guidance from the Commission. She found that Justice Claudette Singh sought to do that when she wrote to Lowenfield several times – June 16, July 9, July 10, July 13, instructing him to prepare and present his report.
“…as determined by the CCJ, unless overturned by a court in an election petition, the only data that could be used for the declaration of the results of the elections would have to be the recount results or data,” Justice George ruled, adding that the 10 declarations made by the ROs prior to the recount, cannot be resurrected. “In this regard, there can no longer be an impasse between the Chairperson and the CEO as to the effect of Article 177 (2) (b) and Section 96. For the avoidance of doubt as stated in Section 18, the CEO is subject to the direction and control of the Commission. In this regard, I refer to paragraph [14] of the CCJ judgment where it is noted that by Secction18 the CEO is ‘mandated to be subject to the direction and control of the Commission’,” she reasoned.
The National Recount shows that People’s Progressive Party/Civic (PPP/C) won the March 2 polls with 233,336 votes cast in its favour.

Res judicata
Res judicata is a legal principle that speaks to ensuring finality in litigation. The doctrine of res judicata applies where a matter has been adjudicated on by a competent court so that the matter cannot be re-litigated. In its literal sense, the term means that a matter has already been finally settled by judicial decision and is not subject to further appeal. Justice George on Monday said that in order for the doctrine to be applicable, three essential conditions must be satisfied: 1) there must be an earlier decision covering the issue; 2) there must be a final decision on the merits of that issue, and 3) the earlier suit must involve the same parties or parties in privity with the original parties. She added that once satisfied, the principle bars the same parties from litigating on the same claim or any other claim arising from the same transaction or subject-matter that was or could have been raised in the first suit. Thus is precluded continued litigation between the same parties in respect of essentially the same cause of action. The concomitant waste of judicial resources is avoided.
Based on the plethora of reliefs sought by Jones and her Counsels, most of whom were in the composition of both Eslyn David and Ulita Moore’s cases, the CJ was asked to determine whether the case was res judicata.
She found that many of the reliefs sought by Jones mirror those of Moore and David hence the conclusion that the matters are indeed res judicata.
Having found that the issues that have led to a determination of this case have been decided by superior courts, the issue of costs had to be addressed differently according to the CJ. Therefore, the parties are to file and serve cost submissions on or before July 24. (G2)