Ruling that it was not the correct forum at which to entertain such an application, Justice Franklyn Holder yesterday rejected the request made by Opposition Leader Bharrat Jagdeo to have the statements of poll (SOPs) for Region Four disclosed to the court, stating that the proper forum would be an elections petition.
Also handed down yesterday was the judge’s ruling in which he gave himself 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 2nd polls.
Jagdeo, through his attorney Senior Counsel Douglas Mendes, had previously submitted arguments during an in-chamber hearing where he contended that the court did not have jurisdiction to hear Moore’s case.
Moore’s attorney Mayo Robertson had, however, refuted this contention. Speaking to the media following yesterday’s hearing, Robertson said that he was satisfied with the ruling which will afford his client’s case to be heard.
Jagdeo is challenging the legality of a March 13th declaration of results for Electoral District Four (Region Four), made by Returning Officer (RO) Clairmont Mingo.
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.
Attorney Anil Nandlall, one of Jagdeo’s other attorneys had contended that the SOPs ought to be disclosed in the interest of transparency so that they could be thoroughly scrutinised against the figures Mingo is purported to have declared as being an accurate representation of the votes cast for District Four.
Justice Holder yesterday, however, said that in accordance with the National Assembly Validity of Elections Act, all questions relating to the elections and the validity of same, ought to be dealt with by an elections petition.
The judge said that the crux of Jagdeo’s application calls for an enquiry into the validity of the elections itself.
He explained that given the allegations of fraud made by Jagdeo regarding the tabulation done by the RO of votes for Region Four and contentions that the entire process was flawed and therefore unlawful; those questions touch the very core of the validity of the elections and for those reasons could only be addressed in an elections petition and not in hearings for judicial review currently before him.
The judge said that by Jagdeo’s request to have the court peruse the SOPs and examine the count and tabulation of votes with what political parties have as against what the Chief Election Officer (CEO) may have, would be overstepping the ambit of the law which he could not do.
Nandlall had advanced that in the interest of justice, the SOPs ought to have been made available to the court as they are the records of votes cast which would be uncontaminated since they go directly to the CEO from the Presiding Officer (PO) at the close of polls.
Nandlall had argued that those SOPs would be the “cleanest and most genuine” ones that they wish to see and they could have been used to resolve the controversy, in contrast to any in the possession of the RO, which could be tampered with.
The judge, however, made it clear that asking for the SOPs leads essentially to questioning the validity of the entire elections, which would be better canvassed in an elections petition.
Commenting on the court giving itself jurisdiction to hear Moore’s matter, Nandlall distinguished this case from the jurisdiction the Chief Justice had given herself to hear a challenge also brought by the Opposition PPP/C questioning the validity of the first declaration of results made by Mingo for Region Four.
The Chief Justice had invalidated this and a second declaration was made on March 13th which is the basis of Jagdeo’s challenge.
Nandlall said that as opposed to the act of a single person (Mingo) or a person within the Secretariat being reviewable by the court, Moore’s action challenges decisions of the entire Guyana Elections Commission (GECOM) and so it falls outside the reviewable powers of the court and should have been done in an elections petition.
Nandlall noted that the judge did not accept this argument they had put forward.
Senior Counsel Neil Boston who is representing CEO Keith Lowenfield—one of the respondents in the matters has, however, argued that notwithstanding the need for an elections petition, one can mount an “intermediate action” seeking judicial review of an unlawful act that GECOM may have been involved in.
As an example he said that in accordance with law, no politician shall interfere with the supervision or running of elections, noting that the agreement between Jagdeo and President David Granger goes beyond what the law provides.
“That is a breach, and they can’t breach a constitutional provision” Boston said, while adding that “GECOM doesn’t have the lawful authority to accommodate an unlawful act.”
Asked to what extent GECOM can decide that a recount will still be conducted notwithstanding the ruling of the court, Boston said that the Commission cannot so decide as it would be unlawful once the court rules that there is no legal basis for a recount.
He said that the count has already been declared and it would then be for an elections petition to review all the evidence in order to make a determination as to whether there may have been some unlawful act or omission which affected the results.
Meanwhile, on the issue of a recount, Nandlall has expressed hope that Chairperson of the GECOM, retired Justice Claudette Singh would not renege on a previous commitment she had given to the Chief Justice and sworn in an affidavit to conduct a recount.
He said that whether or not the court rules that a recount should be done would not remove the stigma already attached to the March 2nd elections. He said that the March 13th declaration made by Mingo would not be accepted, noting that it has already been rejected by both local and international observers and political parties which contested the elections.
Against this background he questioned whether one would now use the judiciary to give legal cover to what has no social and political acceptability.
He said that in accordance with Section 140 of the Representation of the People Act, all decisions of the Elections Commission are challengeable, but only by way of an elections petition.
Following the ruling that the court has jurisdiction to hear Moore’s matter, Mendes made an application for a stay of that decision, pending an appeal of the ruling.
Noting, however, the expeditious manner with which the case needs to be heard and dispensed with, Justice Holder denied Mendes’ request.
The judge pointed to the number of legal challenges which have overtaken time, the fact that elections have been held close to a month now and the expiration of the statutory 15-day period by which results should have been declared.
Against this background the judge said that a stay would lead to protracted delay and thus the matters need to move apace. He pointed out, too, that while there is a President, there is no government which can stymie its work.
The judge, however, made it clear that he was in no way making any pronouncement on any declaration of results so far made, nor on its validity or invalidity, but just to emphasise the point that the matters needed to be dealt with urgently.
In those circumstances Justice Holder denied the stay application but did tell Mendes that he could explore other options available to him to make such an application.
Nandlall said that they will be appealing this decision as they believe that the judge fell into error and as a result will prosecute their appeal to the very end. He said that they will first have to go to the Full Court, the Court of Appeal and then the Caribbean Court of Justice (CCJ) if need be.
Asked about these challenges contributing to protracted delays, Nandlall in acknowledging the exigencies of the situation said that they will move with every convenient speed.
Hearings will resume on Monday at 1pm when Moore’s matter will be heard as well as a hearing and possible ruling on whether the judge has jurisdiction to hear Jagdeo’s challenge.
Boston is challenging the court’s jurisdiction to hear Jagdeo’s matter.
Written submissions for next week’s hearings are to be laid over with the court via e-mail no later than 6 pm tomorrow.
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.
Justice 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.
