Parties can request election documents during petition hearing – acting CJ

…flags issues in APNU/AFC petitions
…APNU/AFC will be required to produce SoPs upon request

At the virtual case management conference of the APNU/AFC’s election petitions on Thursday, Chief Justice (ag) Roxane George indicated that parties are allowed to make applications for electoral documents to be produced during the hearing.

Justice George pointed out that Section 19 of Chapter 1:04 of the National Assembly (Validity of Elections) Act provides for the documents and papers to be inspected or produced upon an order of court for the purpose of an election petition.
“The provisions say that a Party would have to apply with supporting evidence to satisfy the court if such inspection or production is required for the purposes of the election petition… I do not consider that another party can object to an application for the production of election documents or papers, or to inspect election documents and papers,” the Chief Justice stated.
However, she noted that her preliminary view is subjected to be contested by the parties named in the case.

This would mean that the APNU/AFC can be mandated to finally reveal its Statements of Poll (SoPs) from the March 2, 2020 General and Regional Elections – which it has been hiding from the public despite claiming victory based on those very electoral documents.
The SoPs contain the votes tabulated at each of the 2339 polling stations at the close of polls; and, when tabulated, would indicate the winner. However, a National Recount exercise conducted revealed that the People’s Progressive Party/Civic (PPP/C) in fact won the elections by securing 233,336 votes, which is some 15,416 more than the 217,920 votes obtained by the then caretaker APNU/AFC.
But the Coalition is now challenging the processes, that is, Recount Order 60 of 2020 that was used to conduct the recount and its outcome, among other things, in the first petition that was filed on August 31, 2020 in the names of Heston Bostwick and Claudette Thorne, both private citizens.

The APNU/AFC filed the second petition on September 17, 2020 in the names of Monica Thomas and Bernnan Joette Natasha Nurse. This petition is claiming that the March 2 elections were unlawfully conducted, citing various allegations of irregularities and improprieties.
Nevertheless, during Thursday’s case management hearing, Chief Justice George raised several issues pertaining to the coalition’s election petitions.
Justice George pointed out that both petitions are seeking, among other things, for the APNU/AFC’s Presidential Candidate David Granger to be declared winner of the March 2 polls.
But according to the Chief Justice, Granger’s interest as the second named respondent, representing the APNU/AFC, conflicts with the petitions under the Validity of Elections Act. She cited Section 4 (2) of Chapter 1:04, which states that the respondent in an election petition would be a person representing a List of Candidates, whose interest conflicts with the petition.
As such, Justice George asked “…whether the second respondent (Granger) has an interest that conflicts with the petition?”
She also referred to Section 27 (2) of the Act, which states that a respondent who has given notice of intention not to oppose the petition shall not be allowed to appear to act as a party against the petition in any proceedings thereon.
“I want to put respondents on notice that Section 27 (2) is a very important provision; so that if one is not opposing the petition, one has to so indicate to the court, and one would not be allowed to be a party. One would recognise that this is going to be – at least in relation to [the second petition] – a full blown trial with witnesses… So if it is that a party does not have an interest that is in conflict with the petition, then one would expect that that particular respondent would not call witnesses,” the Chief Justice asserted.
The other preliminary issue raised by the Chief Justice during Thursday’s case management conference is that of “late service” in the case of the second petition filed. She noted that it appears that service of the petition on Granger – the second named respondent – has been “out of time”.
Justice George further explained that according to the rules, the petition must be served within five days of filing on the respondents. But she outlined that the court’s records show that the petition was filed on September 15, 2020 and it was served until September 25.
She further noted that having considered Section 8 and Rule 9 of the National Assembly (Validity of Elections) Rules, this “would appear to be outside the time for the service of the petition.
“According to my records, the last date of service would be September 22, given the intervening weekend.”
To this end, the Chief Justice set out timelines for the parties involved, including Attorney General Anil Nandlall who asked to present his input on the issues raised, to file relevant submissions and affidavits in answer. These are to be done by November 24, after which the court will hear arguments on the issues raised at a hearing fixed for November 30 and December 1.
Justice George went on to inform the parties that following the hearing and determination of these preliminary issues along with those raised by the fourth-named respondent – PPP/C, the court will then proceed with the two substantive election petitions, which she said are likely to be heard together, since they are seeking the same end result.
However, the lawyers representing the petitioners are pushing for the matters to be deal with separately.
Attorney Mayo Robertson, who is one of the lawyers on the legal team representing the second set of petitioners, contended that petitions are “sufficient different”, hence the court should consider hearing them separately.
“There is a very slight overlap in the issues raised in the two petitions, but for the most part, Petition 99 goes into substantial detail, would require a substantial amount of evidence, and the court may find it more convenient to detail with that separately from Petition 88,” Robertson asserted.
Meanwhile, Senior Counsel Roysdale Forde, who is part of the legal team for the first-named petitioners, requested that the court not take a decision at this stage of the proceedings.
Forde posited that the first petition, which is a matter of legality, “could be heard and determined separately and independently from all the evidential issues which are required for the second petition. So I just ask Your Honour to not come to a settled position as yet.”