Ahead of next month’s scheduled hearing of the challenge mounted by Guyana Elections Commission (GECOM) commissioner Bibi Shadick to the activation of seven new local government areas (LGAs) and the restructuring of 14 others, the Attorney General’s Chambers has moved to have the case struck out, while saying the court does not have the jurisdiction to hear it.
The state is arguing that the court would only have jurisdiction to hear the matter after the November 12th local government polls would have been held and that this would have to be done by way of an elections petition.
At a hearing on September 14th, Justice Gino Persaud had set October 8th for reports and fixtures for oral arguments after both sides were ordered to lay over written submissions to the court no later than this Friday.
In court documents seen by this newspaper, however, the Attorney General, whose chambers represent Communities Minister Ronald Bulkan, against whom Shadick’s challenge was brought, has secured Thursday at 2 pm to present its application before Justice Persaud to argue that the court has no jurisdiction to hear the matter.
By way of an application for judicial review, Shadick has asked the court to grant orders to quash decisions made by Bulkan and Chief Election Officer (CEO) Keith Lowenfield to activate new LGAs and restructure others and to order them to rectify their violations.
In its newest counter application, however, the state is seeking a declaration that the court, pursuant to Part 9.01 (1) of the Civil Procedure Rules 2016, lacks jurisdiction to hear and determine Shadick’s application.
Attorney General (AG) Basil Williams is arguing that because the challenge raises allegations of irregularities and illegalities, thereby questioning the validity of the elections, that challenge can only be mounted through an elections petition given that the election process began since July 18th.
Nomination Day for contesting parties was last Friday.
In its application, the state is also seeking the award of court costs.
Listing the grounds for its application against Shadick’s requests, the state said, among other things that the court lacks jurisdiction to settle or determine any matter pertaining to the validity of the elections until after the polls are held.
According to the AG, the election statutes created by the Parliament and as set out in the Municipal and District Councils Act Chapter, the Local Government Act Chapter, the Local Authorities (Elections) Act and the Local Democratic Organs Act of the Laws of Guyana do not give the High Court any jurisdiction to settle or determine any matter pertaining to the validity of the local government elections until after the elections are held and then by way of an elections petition.
He said that the procedure set out in Part IV and section 146, section 147 and 148 of the Local Authorities (Elections) Act provides that the only proper procedure to dispute the validity of the election or the election of a councillor is by way of petition to the High Court, which must be presented within 28 days of the publication of the results of the election, in accordance with section 101 of the Local Authorities (Elections) Act.
Shadick, he stressed, cannot lawfully challenge the validity of the elections generally or specifically because the elections process has commenced and is in progress; the local government elections have not yet been held; and the application be presented by way of an elections petition and not a fixed date application.
It is for these circumstances, Williams said, that Minister Bulkan is entitled to dispute the court’s jurisdiction.
Bulkan’s affidavit states that section 146 provides that “Any question whether any person has been validly elected as councillor shall be referred to and determined by the Court,” and that “every such reference shall be by a petition (hereinafter referred to as an election petition) presented to the Court.”
Meanwhile, section 147 (1) provides, “an election petition may be presented by a registered voter in the local authority area for which the election was held or by a candidate at the election,” while Section 148 (1) provides, “an election petition shall be presented within 28 days of the publication under section 101 of the results of the election.”
Advancing the urgent need for the matter to be resolved, given that it has implications for the impending November 12th elections, Shadick’s attorney, Anil Nandlall, had begged Justice Persaud at a case management conference on September 14th to accommodate his application for expeditious hearings and conclusion of the matter.
Shadick is contending that activation of the new LGAs and restructuring of the 14 others effected collectively by Bulkan and Lowenfield are not only unlawful but would render all voting in those LGAs at the upcoming polls void. Shadick is asking the court for orders quashing decisions made by both respondents and ordering them to rectify their violations.
Bulkan has since said that he has acted within the ambit of the law and dismissed the case as baseless, while adding that the opposition PPP, of which Shadick is a member, by its actions and track record has demonstrated to the Guyanese people that it has no interest in local democracy.
Nandlall is arguing that Bulkan has failed to comply with statutory provisions for the holding of the elections, which in turn can result in a court setting the entire elections aside for being “null and void, unlawful and illegal.”
He said that while statute prescribes certain responsibilities for both the Minister and CEO to discharge in relation to local government elections, Bulkan failed/omitted to follow procedures stipulated for the creation of new Neighbourhood Democratic Councils (NDCs), and the creation of new seats in existing LGAs as well as seats in the new NDCs in the manner that the law prescribes.
Shadick is contending that the Minister altered existing boundaries within existing LGAs without any attempt to consult with important stakeholders, including the electors or the political parties. “We believe that such a process must involve consulting with the relevant stakeholders,” Nandlall has said.
The applicant is also arguing that the CEO has no power to fix boundaries for the new NDCs created by the Minister. This, she says, is a power of the Minister himself.
The new NDCs are: Moruka/Phoenix Park; Kitty/ Providence; Nile/Cozier; Lamaha/Yarowkabra; Hauraruni/Yarowkabra; Plegt Anker/Kortberaad; and Wyburg/Caracas. The areas that were restructured were Rose Hall; Evergreen/Paradise; Aberdeen/Zorg-en-Vlygt; Malgre Tout/Meerzorgen; La Grange/Nismes; Toevlugt/Patentia; Caledonia/Good Success; Woodlands/Farm; Mahaicony/Abary; Zeelust/Rosignol; Blairmont/Gelderland; Ordnance Fortlands/No. 38; Adventure/Bushlot; and No. 52 – 74.
In addition to Williams, the state is being represented by Solicitor General Kim Kyte-Thomas and Ayanna McCalman.
