The High Court will hear arguments on a suit seeking full verification of the vote for Region Four at last Monday’s general and regional elections at 3pm tomorrow after acting Chief Justice (CJ) Roxane George-Wiltshire ruled yesterday that the court has jurisdiction to hear the matter.
The case was brought by a supporter of the PPP/C. Speaking to a packed and hushed courtroom yesterday afternoon, the acting Chief Justice said that there are aspects of the application such as whether Charles Ramson was recognised as a counting agent of the PPP/C, whether an application for a final count of District Four was accepted or not, and whether what the applicant says are State-ments of Poll (SOPs) he has in his possession have correct tabulations, which are not for a case such as the one before her and her initial view of those issues was that it would have been better canvassed in an election petition.
As such, she said, out of an abundance of caution, she did not rely on any of that evidence in coming to a decision.
“However, having reviewed the application and the authorities submitted, I have concluded that this [court] has jurisdiction to hear this application as regards whether the first respondent, the Returning Officer, has complied with Section 84 of Chapter 103 [of the Representation of the People Act],” the CJ said.
The acting CJ’s ruling means that the Guyana Elections Commission (GECOM) cannot declare any results until the case has been disposed of and as such, a new president will not be sworn in even though GECOM has released figures indicating that the APNU+AFC coalition has been returned to office.
On Thursday, GECOM controversially declared the results for district four, which show the incumbent APNU+AFC coalition securing 136,335 of the valid votes cast compared with 77,259 votes secured by the PPP/C. Nationally, according to the figures provided, the total votes the incumbent has managed to secure was 237,017 of the 472,834 votes cast on Monday. This is 7,638 more than the 229,379 secured by the PPP/C.
The process used by GECOM to arrive at the Region Four result has been questioned by the opposition PPP/C and the other political parties that contested the elections, along with the international observers, and they have all called for the numbers to undergo the verification of the tabulation process as stipulated under the electoral law.
Since then, the country has been gripped by tension and there have been some protests along the coast, mainly by supporters of the opposition PPP/C, some of which became violent. One man was fatally shot after he allegedly attacked the police.
Yesterday, Justice George-Wiltshire ordered that Senior Counsel Neil Boston, who represents respondents GECOM; Clairmont Mingo, the Returning Officer (RO) of Region Four; and Chief Election Officer Keith Lowenfield, to file affidavits in response by 10:30am tomorrow.
Trinidad and Tobago Senior Counsel Douglas Mendes, the lawyer for Reeaz Hollader, who is listed as the applicant for the injunction granted by Justice Navindra Singh last Thursday, was also given some time to reply should the need arise, and the acting Chief Justice will begin to hear the substantive matter at 3pm tomorrow.
It is the contention of Hollader that in the absence of completing verification of the tabulation of votes for electoral district four, a final result for the elections could not be declared in accordance to law.
Countenance
Coming into play yesterday as well, following the ruling, was the issue of Lowenfield writing to Chairperson of GECOM retired Justice Claudette Singh indicating to her that he had completed the counting process and was ready to declare the results. He asked that Singh convene a meeting with the commission so that this could be done.
The matter was brought to the attention of the court by Mendes, who had a copy of the letter sent by Lowenfield, which he showed to the judge. He also pointed out that the matter was in a case management stage on Saturday and all the named persons were to be present in court for the hearing. He said the letter written by the Chief Election Officer seems to be in violation of the injunction.
Mendes sought that the final report referred to by Lowenfield be revoked and play no part in the ongoing proceedings before the court.
“I will urge this court not to countenance the flouting of its orders particularly while proceedings are still under consideration,” the lawyer said.
At this point, Boston got up and showed the court a press release issued by GECOM’s Public Rela-tions Officer Yolanda Ward yesterday, which stated that the letter by Lowenfield indicating to the chairperson and commissioners that his report in relation to the final declaration being complete was not intended to disregard the court proceedings but rather was apprising the chairperson of the completion of the document and that she may convene a meeting at her convenience. It said that no meeting was scheduled on the matter.
Boston said the release was issued by Ward and when asked by the judge who Ward was, he had to be prompted by other persons in the court that the individual holds the position of GECOM’s Public Relations Officer.
Mendes said they are not surprised by the release but noted that they are not referring to a violation by the commission but rather a violation by Lowenfield as there is nothing to indicate that the commission asked for a report produced by him, and as such it should be assumed that he “produced it all on his own.” He said that they are grateful but not surprised by the commission’s response since it is headed by a retired judge.
“We are asking that that report be revoked and not play any part in this proceedings going forward,” he said.
“Well Mr Boston I [am] going to urge you that you ensure that your clients abide by the order, all of them,” the judge said, and Boston responded that he was giving that undertaking.
Prima facie
Earlier, Justice George-Wiltshire noted that Mingo, as RO for District Four, is the person exercising statutory authority, more specifically in the ongoing case under Section 84. The judge found that there is prima facie evidence that there has been non-compliance with the process outlined in Section 84 (1).
She said while one of the authorities cited confirms that an election petition is the stated procedure for challenges to elections, a process that encompasses the time the elections process starts from the proclamation to the declaration of the final results, it is “equally clear” in other authorities that “where an election official has not followed the procedure outlined in the relevant statutes, in this case Chapter 103, before the final declaration that such failure is open to judicial review.”
She pointed out that this is a case where the actions of the RO acting in compliance with Section 84 Chapter 103 of the Representation of the People’s Act, are up for review.
“There is prima facie evidence in the affidavit that caveats I refer to earlier, that permits the hearing of this application,” the acting Chief Justice said.
She said she is cognisant of the restrictions that requires the approach to the court be by way of election petition; however, there can clearly be cases where the court’s supervisory jurisdictions can be invoked to ensure the correct and smooth operations or progress of elections proceedings or process.
“A court cannot shelve its duty in this regard and shelter behind the contention that an election petition should be filed when the case clearly does not so warrant,” the judge stated.
Having found that there is prima facie evidence that the court has jurisdiction to hear the application, the acting Chief Justice said the respondents must be given a chance to be heard in response through any evidence they may wish to file.
She then requested from Boston that he indicate when he would be able to file his affidavit in response and said that he had until 9:30 tomorrow morning.
He instead said that he was “thinking about three days.”
“No Mr Boston, 9:30 on Tuesday morning. The court will convene at ten o clock,” a curt sounding Justice George-Wiltshire said, as she looked at the lawyer over her glasses.
“I don’t see how you can request three days Mr Boston in the context of the nature of the case. As it is, when I saw the order in which the applicant asked three days to file, I was astounded. So it cuts both ways,” she continued.
She later gave Boston up to 10:30am tomorrow to file and set the case for 3pm tomorrow afternoon, telling him that today’s holiday came in handy.
Admonish
Prior to giving her ruling, Justice George-Wiltshire admonished all parties to be responsible. She pointed out that there will always be one side who would not like the decision of any court.
“I would urge that there be respect for the court, respect for the court’s decision even [if] one does not like the court’s decision,” the judge said.
She admonished counsel on all sides to indicate to their clients that respect for the court is of paramount importance at all times.
Following the ruling, quite a few PPP/C officials, inclusive of Gail Teixeira, Priya Manickchand, Juan Edghill and Robeson Benn, huddled together, obviously happy with the court’s ruling and Benn was heard telling them, “No jubilation, no jubilation…”
Except for Minister within the Ministry of Social Protection, Keith Scott, there were no other senior official of the incumbent government in court for yesterday’s proceedings.
A number of lawyers, members of the international observer missions, and representatives from the smaller parties were present for the ruling.
Hollader’s application for the injunction is premised on the argument that in the absence of completing verification of the tabulation of votes for electoral district four, a final result for the elections could not be declared in accordance with the law.
Last week Thursday, GECOM controversially declared the results for district four, which show the incumbent APNU+AFC coalition securing 136,335 of the valid votes cast compared with 77,259 votes secured by the PPP/C. While the regional results for all the other nine electoral districts were publicly declared by their respective district ROs, the results for district four were released to the media fraternity via WhatsApp after 9 of the 10 parties contesting objected to attempts Mingo to make this declaration.
While the verification process of the tabulation of votes for district four had commenced earlier, on Thursday, it was halted with the understanding that it would be resumed later. However, following commotion which erupted at GECOM’s command centre between local party observers on both the government and opposition sides, Mingo began announcing the results for district four.
His attempts were, however, drowned out by loud shouting from members of the opposition and other political parties. It was after this that Ward disseminated the results to the media via WhatsApp.
The statutory Declaration Form 24 was signed by Mingo and countersigned by Volda Lawrence the APNU+AFC Counting Agent. All other Counting Agents refused to sign the document.
If the numbers are accurate and are mirrored at the general elections, the APNU+AFC coalition would have won the elections by in excess of 7,000 votes or one seat.
