Recount Order valid unless an Elections Court determines otherwise – GECOM Chair tells COA

…says appeal “frivolous” and “vexatious”, should be dismissed

Chair of the Guyana Elections Commission, Retired Justice Claudette Singh through her attorney Kim Kyte-Thomas, has asked the Court of Appeal to dismiss the case brought by APNU/AFC agent Misenga Jones.

Jones is appealing the ruling of acting Chief Justice, Roxane George after she dismissed the case seeking to compel the Guyana Elections Commission to use the declarations of the 10 Returning Officers – inclusive of the fraudulent figures of embattled Returning Officer for District Four (Demerara-Mahaica) Clairmont Mingo.
In her submissions to the court, the GECOM Chair argued that the appeal lacks merit and ought to be dismissed since the findings and decision of the Chief Justice represents the long-established jurisprudence of electoral laws and the electoral regime in respect to the issues raised before the court.
She furthered that Jones’ appeal is frivolous, vexatious and amounts to an abuse of the court’s process.

Jones based her appeal on the grounds of whether Section 22 of the Elections Laws (Amendment) Act, No 15 of 2000 pursuant to which GECOM issued Order 60 of 2020 is Constitutional; whether Order 60 and by extension, the recount results obtained therefrom are valid such as to permit a declaration of the March 2, 2020 election results based on the said recount results; whether the declarations of the Returning Officers for the 10 Electoral Districts made pursuant to Section 84 of the Representation of the People Act, Chapter 1:03 should be acted on or be set aside; and whether Section 18 of the Election Laws (Amendment) Act of 2000 is unconstitutional in light of Article 177 (2) (b) of the Constitution.

The GECOM Chair’s lawyer contended that all the issues have been dealt with during the various legal challenges to the elections process since March 2, 2020. She noted that the reliefs sought by Jones cannot be determined by the Appeal Court and as such, are best suited for an election petition before a duly constituted elections court.
Additionally, Kyte-Thomas submitted that the court is prevented from inquiring into whether any function of the Elections Commission or any of its members has been performed validly or at all except as provided for under the exclusive jurisdiction of the High Court by way of an election petition pursuant to Article 163 (1) (b) of the Constitution. Moreover, she expressed that issues raised have already been litigated at various stages by competent courts while alluding to the cases of Moore v GECOM and Others Civil Appeal 38 of 2020, and Caribbean Court of Justice in Ali & Jagdeo v David & Ors, GY Civ Appeal 41 of 2020.

One of Jones’ contention is that Section 22 of the Elections Law Amendment Act is unconstitutional and that the court should determine such but Kyte-Thomas in her submissions reminded that the Appeal Court already ruled that the issue is best addressed before an elections court.

Kyte-Thomas argued that any relevant subsidiary legislation in the foregoing provision would include – a subsidiary legislation made under the Elections Law (Amendment Act); a subsidiary legislation made under the ROPA; and a subsidiary legislation made under the National Registration Act.

Therefore, the GECOM Chair contended that the power given to the Commission under the said Section 22 to modify by order relates only to subsidiary legislation and not to any parent Act. Importantly, she cited Section 20 (1) (C) of the Interpretation and General Clauses Act, Cpt 2:01 which states: “Where subsidiary legislation is in excess of the power under which it is made, it shall nevertheless be valid to the extent to which it is not in excess of that power.”
It was furthered, given those provisions, Order 60 (the Recount Order) is therefore lawful and the results emanating from such is also within the confines of the law.
The attorney noted that Jones’ appeal cannot and should not be entertained by the court since it is premature – in light that the election process is still ongoing. It was noted that any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election can only lawfully form the basis of an election petition after the result has been declared.
“It is obvious from the conduct of the appellant, that her intention is to have the election annulled on the basis of alleged irregularities. However, this is not permissible at this stage. I submit that this can only be addressed by way of an election petition,” the GECOM Chair said.
Kyte-Thomas reminded that the Court of Appeal endorsed the recount in the case of Moore but noted that GECOM should not abdicate its responsibilities. The validity of Order 60 and the recount numbers were further reinforced by both the CCJ and the CJ in various rulings.