Throw out Notice of Motion blocking elections declaration – GECOM Chair tells Appeal Court

APNU/AFC petition to stop declaration

…says CEO cannot evaluate alleged “irregularities”

In her written submission to the Court of Appeal, Chairperson of the Guyana Elections Commission (retired) Justice Claudette Singh is asking the Court of Appeal to reject the Notice of Motion filed by APNU/AFC supporter, Eslyn David, who is seeking to block GECOM from moving ahead with the much-anticipated declaration of the March 2 elections results. “…the Notice of Motion should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions to bring finality to the 2020 Elections,” detailed the submission filed by Attorney Kim Kyte on behalf of the GECOM Chair on Friday. She reminded the court that the Constitution is no ordinary statute but the source of legislative and executive authority.

To this end, Kyte “…submitted that the duty of the court is not to re-write the Constitution but to interpret what is already stated in the Constitution clearly. The words themselves best declare the intention of the framers.”

Appellate Court lacks jurisdiction
She argued that Article 177 (4), under which the Notice of Motion was filed, clothes the Court of Appeal with a “narrow special exclusive jurisdiction” to hear and determine any question as to the validity of an election of a President in so far as that question turns upon the qualification of any person for election or the interpretation of this Constitution.

Article 177 (4) states: The Court of Appeal shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a President in so far as that question depends upon the qualification of any person for election or the interpretation of this Constitution; and any decision of that Court under this paragraph shall be final.
“The Court of Appeal is therefore not vested with original jurisdiction to hear questions on the interpretation of the Constitution outside of this narrow special jurisdiction. It is the High Court which is so vested… Further, when one reads the entire Article 177, the Article contemplates a person already declared by GECOM as President. It is respectfully submitted that the electoral process has not reached this stage. In any event, the Order sought… [in] the Notice of Motion amounts to the interpretation of an Order and not the Constitution,” Kyte contended in her submission.

Orders sought bad in law
Meanwhile, Justice Singh’s lawyer further posited that Article 133 (1), instead, vests the Court of Appeal to hear appeals from the High Court on questions on constitutional interpretation. Hence, she added, the first two orders sought a Declaration that GECOM failed to act in accordance with its order and secondly an interpretation of the words “more votes are cast”, and the affidavit filed in support do not touch and concern the qualification of a person elected President.
“It is respectfully submitted that the application is misconceived and ought to be struck out forthwith,” she argued.

With regards to the relief sought in the Notice of Motion, Attorney Kyte said this cannot be determined by the Appeal Court but instead must be pursued by an election petition.
It was further pointed out that Article 163 (1) (b) of the Constitution confers on the High Court the exclusive jurisdiction to determine the validity of an election. In this regard, the lawyer argued that GECOM could not have thereby clothed itself with jurisdiction to establish itself as a court of law to determine the credibility of an election when Article 163 (1) stipulates that the High Court shall have exclusive jurisdiction to determine the legality of an election.
“It is submitted that the Commission cannot arrogate onto itself a jurisdiction to determine the credibility [of] an election or any unlawful act since no specific power was conferred on it under Article 162 (1) (b) to so do,” she posited.
Kyte submitted that it is only a competent Court with jurisdiction that can listen to the allegations and determine what weight they have, not GECOM and certainly not the Chief Elections Officer.
CEO Keith Lowenfield in his summary report to GECOM had used the allegations made by the APNU/AFC of dead and migrated voters to disenfranchise thousands of Guyanese and provided figures, which he concluded are credible. His calculation awarded the coalition 125,010 votes and the PPP/C 56,627 votes.
However, the GECOM Chair’s lawyer questioned that if GECOM is to embark on this credibility exercise then what basis should be used to determine the issues of validity and credibility.
“The letters from one party? The opinion of the CEO?  Can GECOM just use the CEO’s opinion without giving interested parties an opportunity to be heard? Is GECOM to hold court and take evidence? The Applicant is asking GECOM to embark on a trial. The court should not be asked to act in vain. Even if the court grants the orders sought, what is the next position? Can this court direct GECOM what to decide? Can this court order GECOM to hold a fresh election? Are these orders even sought? The short answer is no since this is not an election court,” Kyte asserted.

Elections petition after declaration
The GECOM Chair’s attorney went on to submit that the Notice of Motion cannot be entertained at this time as it is premature. She outlined that any challenges to the validity of an election and any dispute or any irregularities or illegalities in relation to an election can only lawfully form the basis of an election petition after the result of the election has been made known.
“Therefore in accordance with the statutory requirements and in order not to cause the election proceedings to be unduly retarded or protracted, any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election must be brought by way of an election petition after the result of the election has been made known… In the circumstances, there is no merit in… the Notice of Motion and as such the application for injunctive reliefs must fail,” Kyte submitted on behalf of the GECOM Chair.