Justice Franklyn Holder will first rule on whether he has jurisdiction to hear the lawsuit filed by APNU+AFC candidate Ulita Grace Moore, who has moved to halt a recount of ballots cast at the March 2 polls, before making a determination of whether statements of poll (SOPs) for Region Four can be disclosed to the court as requested by Opposition Leader Bharrat Jagdeo.
Following yet another in-chamber hearing yesterday, Moore’s attorney, Mayo Robertson, said that the issue of jurisdiction was raised by Senior Counsel Douglas Mendes, who represents Jagdeo.
With this issue arising only yesterday, Robertson said that the court will first rule on jurisdiction, before making a pronouncement on whether the SOPs requested by Jagdeo can be disclosed.
Robertson has said that he will be opposing Mendes’ contention that the court does not have the jurisdiction to hear his client’s matter. He said he firmly believes that the court does have jurisdiction to hear the matter.
Jagdeo is challenging the legality of a March 13 declaration of results for Electoral District Four (Region Four), made by Returning Officer Clairmont Mingo.
Both his and Moore’s matters have been consolidated and will be heard together as they both relate to the same subject matter.
Meanwhile, in his address to the media following the hearing, Senior Counsel Neil Boston who represents Chief Elec-tion Officer (CEO) Keith Lowenfield—a respondent in the matter—said that the judge sought to enquire from Mendes the utility of his client requesting the disclosure of SOPs, when it was they who also raised the point that the court has no jurisdiction to even hear the case.
Given the point raised by Mendes, however, the court has ordered him to file arguments no later than 2pm today, while Robertson was ordered to file his response by the same time, but on Thursday.
Speaking to the media also was attorney Anil Nandlall, one of Jagdeo’s other attorneys who contends that the SOPs ought to be disclosed in the interest of transparency so that they can be thoroughly scrutinised against the figures Mingo is purported to have declared as being an accurate representation of the votes cast for District Four.
The opposition PPP/C’s position has been that Mingo did not, as required by law, use the SOPs to tabulate the results he eventually declared.
Nandlall said that in the interest of justice, the SOPs ought to be made available to the court as they are the records of votes cast which would be uncontaminated that go directly to the CEO from the Presiding Officer (PO) at the close of polls.
It is these SOPs, he said, which would be the “cleanest and most genuine” ones that they wish to see and they can be used to resolve the controversy, in contrast to any in the possession of the RO, which could be tampered with.
Nandlall opined that one would expect that Lowenfield, being a part of an impartial body as well as the statutory officer and custodian of all documents in relation to the elections, would have been “most anxious and willing” to allow the SOPs to be scrutinised by everyone, including the court, in order to resolve the controversy.
Nandlall said that unfortunately Lowenfield has taken a position inconsistent with this in resisting his SOPs be used.
According to him, Lowenfield’s arguments “are on the side of Ulita Moore, which should not be.”
He said that if there is an impartial party before the court, it should be the Elections Commission and the CEO.
The lawyer said that Moore’s attorney had raised a jurisdictional issue as to whether the court could make an order for the SOPs to be disclosed, to which he said he and Mendes countered by questioning whether the court had jurisdiction to hear the action brought by Moore as well.
Acknowledging that he is challenging the court’s jurisdiction to hear Moore’s challenge, Nandlall said that the disclosure hearing for the SOPs they want to see should first be done, and then the court can, at some point thereafter, address its mind as to whether it can entertain Moore’s application.
According to Nandlall, Moore’s application questions decisions made by the Elections Commission, which in accordance with the Representation of the People Act is precluded from enquiry by any court.
“So you have a jurisdictional bar,” he said, which is created by the Act, against a court enquiring into decisions made by GECOM, which he said is the thrust of Moore’s challenge.
He said that if the court rules that it has no jurisdiction to hear Moore’s case, then the discovery application would be rendered nugatory, as it hinges on Moore’s application.
Asked whether the SOPs can be produced in the current proceedings, outside of an elections petition, Nandlall affirmed that this is in fact what their argument is.
According to him, his team has been able to show by statute that in the same way Mingo’s decision, conduct and tabulation of the exercise was earlier enquired into by the Chief Justice, so, too, is the enquiry regarding the SOPs and the March 13 declaration by Mingo.
According to him, it is the identical exercise. He rejected suggestions that it would essentially be an exercise calling on the court to make a determination regarding actual numbers and votes, which ought not to be entertained by the court outside of an elections petition.
Attempting to draw a distinction between the two processes, Nandlall said that what they are hoping to achieve is an understanding of how Mingo did the addition.
Outlining the functions of the RO in accordance with statute, the lawyer said that he is to add and ascertain the number of votes cast for each list of candidates by adding those votes.
Nandlall said that if Mingo is claiming that the SOP’s are the basis for his addition, yet his numbers are different from those which are in the SOPs in possession of other parties, one of the best ways to resolve such a discrepancy would be to use what he described as a neutral SOP which he said would be those in possession of the CEO.
Counsel stressed that his client’s case is not one exploring the adding of numbers which ought to be for an elections petition enquiry, but rather to show that Mingo could not have been using the SOPs to make the tabulations as the Chief Justice had earlier ruled must be used in accordance with the Act.
The lawyer further pointed out that if Lowenfield’s SOPs are produced, it would easily establish that Mingo was not using SOPs, but rather getting the numbers at which he arrived “from some other source.”
“And that is the bone of contention,” Nandlall made clear, even as he questioned where Mingo had gotten the numbers from.
The matter continues on Friday morning at 9.30 for arguments.
Jagdeo and President David Granger had agreed to a national recount, which was slated to begin last week Monday.
An independent high-level team from CARICOM had traveled to Guyana to supervise the recount of ballots due to controversy over the tabulation of the votes cast for Region Four, which opposition parties as well as international and local observers say was not done in a transparent and credible manner.
Following the granting of injunctions to Moore halting the recount, however, the team has since withdrawn.
The CARICOM-facilitated full recount had been announced by the CARICOM Chair, Prime Minister Mia Mottley of Barbados, who said Granger had made a request for CARICOM to field a team to supervise the recounting of the ballots in all regions. Jagdeo had agreed to this move, which followed a contentious vote count for Region Four that resulted in allegations of fraud.
GECOM Chairperson retired Justice Claudette Singh, who is also a respondent in the cases, in an affidavit dated March 20th had given an undertaking following a ruling delivered by Chief Justice Roxane George-Wiltshire that should there be discrepancies in the SOPs called by Mingo with those held by political parties, then such discrepancies would be noted at the end of the process if they could not be addressed then, and she would endeavour to facilitate a recount at the level of the Commission.
She noted that her undertaking was accepted by the Chief Justice.
Her affidavit was drawn by her attorney, Kim Kyte-Thomas.
