SoPs, SoRs not personal property of Lowenfield – Chief Justice

Electoral fraud

…orders release to DPP, Top Cop

Chief Justice (ag) Roxane George has ordered the Registrar of the High Court, Suenna Lovell to release certified copies of the Statements of Poll (SoPs) and Statements of Recount (SoRs) from the March 2, 2020 General and Regional Elections to Attorney General Anil Nandlall, SC.

In doing so, the acting Chief Justice on Thursday refused an application by Chief Elections Officer (CEO) Keith Lowenfield, who was seeking to intervene as a respondent in a case filed by the Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, and Commissioner of Police (ag), Nigel Hoppie.
In that case, the DPP and acting Top Cop asked the acting Chief Justice to order the Registrar to release the election documents as they constitute part of Police investigations into electoral fraud charges against the CEO and other high-ranking Guyana Election Commission (GECOM) officials.
Following the dismissal of the A Partnership for National Unity/Alliance For Change (APNU/AFC) election petition number 88 on January 18, 2021, Justice George ordered GECOM to hand over the original copies of the SoPs and SoRs to the Registrar of the Supreme Court for safekeeping. Lowenfield handed over them three days later.

Not personal property
“The documents are not the personal property of the CEO. They are public documents of which he is merely the custodian pursuant to the law on behalf of GECOM,” Justice George underscored.
Although Lowenfield is the legal custodian of the documents, Justice George said that he did not have an interest such as to object to the court granting permission for the release of the SoPs and SoRs for the reasons outlined by the DPP and acting Top Cop.

“While the CEO is the custodian of these documents, he is merely so as an agent of GECOM,” the acting Chief Justice noted.
Lowenfield’s lawyer, Nigel Hughes had contended that under the National Assembly (Validity of Elections) Act and the Representation of the People Act (RoPA), his client can only release the documents “for the purposes of an election petition” .
Justice George, however, labelled this contention “untenable” given the fact that the election law contemplates criminal proceedings as regards an election. Further addressing Hughes’ contention, the acting Chief Justice pointed out that the election jurisdiction and criminal jurisdiction of the court are “separate and distinct”.
According to Justice George, the provisions of RoPA and the National Assembly (Validity of Elections) Act, speaking as they do, for the custody and safekeeping of election documents and the challenge to the validity of an election, do not mean that these documents cannot be released to law enforcement entities as part of their investigations.
The election laws do not contemplate that the documents cannot be released in support of criminal proceedings that are related to an election even where the CEO is also a defendant, Justice George said.

Neither gain nor lose
Justice George held that Lowenfield, in his affidavit, failed to disclose how he will be “adversely affected” by the release of the election documents. “It is only where the CEO will gain or lose by the direct legal operation and effect of the judgment should he be allowed to intervene.”
In this regard, she said that an order for the release of the SoPs and SoRs “would not cause the CEO to be adversely affected. That is to say that as CEO, he will neither gain nor lose as the mere provision of these documents will enable the applicants (DPP and Top Cop) to exercise their right to institute proceedings relating to the conduct of election officers…”.

“For the court to allow the CEO to become an intervening party in these proceedings would have the effect of complicating these legal proceedings unnecessarily. As such, I do not consider that the CEO is a proper party in these proceedings. No law prevents the release of the documents,” Justice George stated.
Additionally, the acting Chief Justice said that Lowenfield could have been requested to produce the SoPs and SoRs in the general course of a Police investigation and that any refusal on his part would have permitted the Police to seek the assistance of a Magistrate in getting a search warrant.
“The evidence before me permits the release of the certified copies of the documents. There is no reason not to grant the application made by the Commissioner of Police and the DPP,” she added.
According to Justice George, the effect of the order sought by the applicants would only be to permit access to the documents for criminal proceedings. And in the acting Chief Justice’s view, “there can be nothing unlawful about this; a commonplace occurrence in many criminal proceedings”.
The Registrar of the High Court was ordered to hand over the SoPs and SoRs to the Attorney General within 10 days of the court’s ruling. The Attorney General will in turn deliver the documents to the DPP and the Top Cop.
Though the DPP’s counsel, Dharshan Ramdhani pressed for costs to be awarded against Lowenfield, Justice George made no such order, stating “I think the intended intervener [Lowenfield] is fortunate in this case. But I do think the issue needed to be clarified and it has now been clarified.”

Fair hearing
Following the conclusion of the March 2, 2020 General and Regional Elections, which were marred by controversy, several election officials were investigated by the Guyana Police Force (GPF) and charges were later recommended against them by the office of the DPP.

Apart from Lowenfield, the others charged are Deputy CEO Roxanne Myers, and Region Four (Demerara-Mahaica) Returning Officer Clairmont Mingo. The DPP’s position is that the SoPs and SoRs are needed for a fair hearing of the charges as they constitute relevant evidence for the prosecution to prove the commission of the offences by Lowenfield, Myers, and Mingo.

Ali-Hack deposed that unofficial copies of the SoPs were in the public domain and that certified copies of them would confirm and show that certain numbers of cast votes were recorded on those documents. Ali-Hack noted that the SoPs and SoRs, together with other evidence, will show that Lowenfield, Myers, and Mingo deliberately ignored those recorded figures and made false declarations in furtherance of their conspiracy.

Others charged
People’s National Congress Reform (PNCR) Chairperson Volda Lawrence and APNU/AFC activist Carol Joseph are also before the courts on electoral fraud charges. There are also electoral fraud charges against GECOM clerks Denise Bob-Cummings and Michelle Miller and GECOM Elections Officer Shefern February and Information Technology Officer Enrique Livan.
All those charged have been released on cash bail.
Lowenfield’s report claimed that the APNU/AFC coalition garnered 171,825 votes while the People’s Progressive Party/Civic (PPP/C) gained 166,343 votes. How he arrived at those figures is still unknown. 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 regime. The DPP has since hired a team of special prosecutors consisting of about six Attorneys-at-Law to prosecute the electoral fraud cases on behalf of the State. (G1)