…judge, jury defence application mode to delay justice – special prosecutor
Attorney General and Legal Affairs Minister Anil Nandlall has made it clear that the Government has no control of the court system, which is an independent constitutional body.
He made this comment on the heels of criticisms about the delay in the prosecution of several high-ranking officials from the Guyana Elections Commission (GECOM) and the A Party for National Unity (APNU) who have been charged for their alleged attempts to rig the March 2020 General and Regional Elections.
The Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, has since hired a team of special prosecutors to prosecute the electoral fraud cases against Chief Elections Officer (CEO) Keith Lowenfield; Deputy CEO, Roxane Myers; GECOM clerks Denise Bob-Cummings and Michelle Miller; Region Four (Demerara-Mahaica) Returning Officer Clairmont Mingo; GECOM Elections Officer Shefern February, and Information Technology Officer Enrique Livan; APNU/AFC activist Carol Joseph, and Chairperson of the People’s National Congress Reform (PNC/R), former Public Health Minister Volda Lawrence.
“Persons are now becoming critical. They are not seeing the case with the persons charged in relation to the criminal offences at GECOM… They are becoming impatient because they are not seeing anything going on in the trial,” Nandlall said during a recent interview on a local radio programme.
In this regard, the Attorney General explained that the People’s Progressive Party/Civic (PPP/C) Government governs the country in accordance with the laws and Constitution. “You have to understand that we [PPP/C] manage and govern this country in accordance with the laws and the constitution. I cannot speak for other Governments,” he asserted.
“We do not control the Police Force; we do not dictate to the Police Force. All we can do is make a report and activate a process. That process for the purpose of criminal investigation and prosecution is manned by independent agencies of the Constitution and statutory bodies.”
According to him, the Police Force is not a department of Government. He added that although Robeson Benn is the Home Affairs Minister, he cannot dictate the day-to-day operations of the Police Force. “The Police Force is under the superintendence of a Commissioner that has a management hierarchy. [Government] cannot interfere with the Police and direct them how to investigate,” he noted.
The Attorney General went on to explain that the matters then move from the Police to the Office of the Director of Public Prosecutions – another independent constitutional institution insulated from any form of political influence by the Government – for legal advice.
“That office must also function independently. We cannot tell the DPP what to do or to accelerate a process; we can make public calls like everyone else. We can be critical that the process is taking long. And from there it goes to the courts if the DPP decides that charges are going to be filed.
“The court, again, is another independent constitutional link in the chain over which we have no control. So, the cases are there,” Nandlall said in conclusion.
Shortly after the PPP/C Government took office on August 02, 2020, the Police instituted charges against Lowenfield and others. Lowenfield is facing three counts of forgery and three counts of misconduct in public office. He was released on $300,000 bail. His deputy, Myers, is also facing two similar charges.
Mingo is facing similar charges too; in fact, four of them. He was ordered to post bail in the sum of $600,000.
Lawrence, on the other hand, was slapped with two charges for conspiracy to commit fraud at the March 02, 2020, General and Regional Elections. She was placed on bail.
Joseph is charged jointly with Mingo for forgery.
Meanwhile, Livian is facing fraud charges, while February is accused of conspiring to commit fraud. They have all been released on bail.
Lowenfield’s report claimed that APNU/AFC coalition garnered 171,825 votes while the PPP/C gained 166,343 votes. How he arrived at those figures is unknown, since the certified results from 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 Director of Public Prosecutions (DPP) has hired six special prosecutors to prosecute these electoral fraud cases. However, the trial has not commenced in any of the cases.
One of the special prosecutors, Attorney-at-Law Glen Hanoman, explained to Guyana Times that the more than 25 matters are currently before two magistrates – Chief Magistrate Ann McLennan and Magistrate Sherdel Isaacs – neither of whom have decided the mode of the trial; that is, whether to hear the matters summarily and dispose of them in the magistrate’s court, or conduct a preliminary inquiry to determine whatever the matter can be heard before a judge and jury in the High Court.
In fact, contrary to the misleading headline in the State newspaper, Hanoman explained that it is the defence, and not the prosecution, that is seeking to have the matter heard before a judge and jury.
Moreover, Hanoman pointed out that the individual matters can also be consolidated and heard together in the lower court, since they all have the same witnesses and evidence. He added that such matters have never been in the High Court before.
According to the special prosecutor, the defence’s application will not only cause the matter to be prolonged in the courts, but also put the accused at risk of facing more severe sentencing, including life sentences.
“Usually, defence lawyers will always prefer a summary trial, because the magistrates have a statutory maximum penalty that they can impose, that is, five years; whereas, if you go to a judge and jury you can get life imprisonment… So, I believe that the applications by the defence are really meant to delay justice rather than for any other proper purpose,” he posited.
According to the laws, the magistrate is required to hear deposition from the prosecution and the defence before making a decision on the mode of trial, but that decision must be in conformity with the laws, which say matters should be heard efficiently and in convenience to the state.
Nevertheless, Hanoman noted that Magistrate Isaacs, who is hearing the cases filed against Lowenfield, has set a date in March to make a decision on the mode of trial; and, in the meantime, has asked the defence to put in writing its reasons for wanting the matter to go to the High Court. The defence was given a date for submission, after which the prosecution will respond.
However, in the matters before the Chief Magistrate, who is hearing the bulk of the cases filed, nothing has been fixed to determine the mode of trial. Hanoman told this newspaper that when the matter comes up on January 28, he will request Chief Magistrate McLennan to also ask the defence to put their request in writing.
The special prosecutor says he anticipates these matters taking several years in the courts.