It has been 28 days since general and regional elections were held in Guyana. However, the results are yet to be officially declared to enable a new government to be formed to manage the affairs of the State for the next five years. During the week of the elections, GECOM had announced the results for all the regions, except Region 4, which the international and local observers as well as the political parties contesting the elections did not have any difficulty accepting as transparent and credible.
Region 4 had 879 Statements of Poll (SOPs) of which 421 had been verified applying the same methodology used for the other regions involving examination of the SOPs and tallying them in the presence of the political parties contesting the elections. This was necessary to allow the political parties to compare the results with the copies of SOPs in their possession and to resolve any discrepancies that might have arisen. On 5 March, however, the Returning Officer (RO) for Region 4 abandoned the exercise and proceeded to announce the results, using a spreadsheet that GECOM staff had prepared. Sensing that the RO had intended to do so, the intervention of the court was earlier sought to prevent him from announcing the results unless the declaration was done in accordance with the Representation of People Act. The Chief Justice ruled that the RO’s declaration on 5 March 2020 of the total votes cast was unlawful and in breach of Section 84(1) of the Act, and was void and of no effect.
The international observer groups, the political parties contesting the elections (except APNU+AFC) and all major stakeholders, were unanimous in their agreement that the count for Region 4 lacked transparency and credibility. There was also public outcry at what was clearly evident that the results for Region 4 were being tampered with. This resulted in some amount of civil unrest that saw one person killed and several others injured in addition to destruction of property, prompting four CARICOM leaders to visit Guyana to assist in resolving the issue.
Amid international condemnation of what was clearly an organized attempt to thwart the will of the electorate and to have an illegitimate government installed, the key Western countries threatened to impose sanctions against such a government. At the same time, there were calls for a recount of the votes, with the Chair of CARICOM making it clear that ‘every vote must be made to count; and transparently so’. As a result, the President and the Opposition Leader agreed to the presence of a high-level CARICOM team to supervise such a recount. The team arrived in the country but had to leave two days later because an injunction was granted to block the recount based on an application by an APNU+AFC regional candidate for the elections that such a recount is unconstitutional. The President has been severely criticized for agreeing to the recount while at the same time allowing one of his party’s candidates to attempt to stop it. Former GECOM Chair, Ret’d Major-General Joe Singh suggested that the President was either being Machiavellian, or was being manipulated by members of his own inner circle.
Today, we continue our coverage of events in the aftermath of the 2 March general and regional elections.
Statement by Sir Shridath Ramphal
The former Minister of Business and executive member of the AFC Dominic Gaskin had stated a new model of governance is needed that does not incite the current level of divisiveness every five years. In applauding Mr. Gaskin for his stand on the matter, Guyana’s former Attorney General Sir Shridath Ramphal stated that the coming days will witness the country choosing a path that will lead to ‘either a good Guyana led by a credo of values and principles, or a failed state that has abandoned them’. He referred to Article 1 of the Constitution that provides for Guyana to be a sovereign democratic State as well as to the Preamble:
WE THE GUYANESE PEOPLE…in the spirit of reconciliation and cooperation, proclaim in this Constitution in order to…Forge a system of governance that promotes concerted effort and broad-based participation in national decision-making in order to develop a viable economy and a harmonious community based on democratic values, social justice, fundamental human rights, and the rule of law.
Sir Shridath was one of the “three wise men” that brokered the 1998 Herdmanston Accord in the wake of the political unrest that followed the 1997 elections. (The Accord required an audit of the results of the elections; dialogue between the two main political parties; setting up a Commission to advise on constitutional reform; shortening the life of the government to three years to enable elections to be held in early 2001.) He spoke of respect for the inherent dignity and the equal and inalienable rights of all persons as the foundations of freedom, justice and peace in society; and of the recognition that these rights and freedoms are best established and secured in a democratic society founded upon the rule of law. We may add that in accordance with Article 9 ‘[s]overeignty belongs to the people, who exercise it through their representatives and democratic organs established by or under this Constitution’. (Emphasis added.)
Statement from UK Foreign Secretary
Last Tuesday, the UK Foreign Secretary stated that the transition of government in Guyana should only take place in line with ‘transparent and democratic principles that lead to credible results. Any government sworn in on the basis of non-credible results will face strong international condemnation’. He warned that if the situation continues to deteriorate, the international response will include a range of serious consequences for those concerned.
Court hearing of the injunction
At the court hearing in relation to the injunction to stop the proposed recount of the votes cast under CARICOM supervision, lawyers for the Opposition Leader requested that all SOPs for Region 4 be presented to the court on the ground that voters have a right to a proper and transparent process for declaring the results, adding that the SOPs are conclusive evidence of the results. However, GECOM lawyers argued that such documents could only be requested in an elections petition. In response, the lawyers for the Opposition Leader then raised the issue of whether the court had jurisdiction to hear the application by the APNU+AFC candidate. They cited Section 140 of the Representation of the People Act that prohibits a court from inquiring into the work and decisions of GECOM. On Friday, the court ruled that it has the jurisdiction to hear the case. It also ruled against the SOPs being presented to the court. Lawyers for the Opposition Leader have appealed the ruling.
In a refiled affidavit to the court, GECOM Chairperson stated that she had given an undertaking to the court that, should there be discrepancies in the SOPs used by the RO of Region 4, such discrepancies would be noted at the end of the process if they could not be addressed then. She would then endeavour to facilitate a recount at the level of the Commission:
Once there is evidence that the electoral process was compromised then to ensure the impartiality, fairness and compliance with the provisions of the Constitution or of any Act of Parliament the commission is constitutionally mandated to intervene to ensure public confidence in the electoral process… Thus, it would be unlawful for the court to direct the commission on the way forward to complete the process where these issues are still outstanding.
The explanation given for the refiling of the affidavit was that the original affidavit conflicted with the commitment GECOM Chair had given to the court. That affidavit had stated that the Region 4 tabulation was in accordance with Section 84(1) of the Representation of People Act and that the Commission has no authority to accede to any request for a recount based upon an agreement between the President and Opposition Leader.
GECOM Chair’s revised position now differs from that of GECOM’s Chief Executive Officer who, in a separate affidavit to court, argued that GECOM is not entitled to direct the RO of Region 4 to revisit the objections to his declaration. This is despite the requirements of Article 162(1) (b) of the Constitution which state that:
The Commission shall issue such instructions and take such actions as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.
Needless to mention, the Constitution is the supreme law of the land, and where there is a conflict between any law and the Constitution, the latter prevails.
In her revised affidavit, the GECOM Chair referred to the 2001 case (Joseph Hamilton vs the Guyana Elections Commission, Bharrat Jagdeo and the Attorney General) in which the then Chief Justice Desiree Bernard ruled that:
The role of the Elections Commission and its staff is to take such action as appears necessary to ensure impartiality, fairness and compliance with the provisions of the Constitution and any other acts of Parliament…Confidence in the electoral process must be restored. This is absolutely essential if we, as a nation, are to forward and strive to heal the wounds that divide us. Let fairness pervade all of our actions at all times…No effort must be spared to assure everyone that the process is fair and impartial. Lingering doubts that hang like a sword of Damocles over the head of the Commission must be removed.
GECOM Chair noted that the RO of Region 4 rejected the applications by several contesting parties for recounts under Section 84 of the Act. In such a circumstance, the Commission can intervene to have any discrepancies resolved. She concluded that ‘[f]or the reasons advanced above, the application should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions with or without the Caricom Agreement’.
Summoning of Guyana’s Ambassador to the United States
On Thursday last, the Acting Assistant Secretary for U.S. Department of State’s Bureau of Western Hemisphere Affairs summoned Guyana’s Ambassador to the United States and warned against the illegal installation of a government in Guyana and indicated that the United States is of the firm position that ‘any government sworn in based on flawed election results would not be legitimate. Every vote must be counted’.
Statement from the Canadian government
The Assistant Deputy Minister for the Americas at Global Affairs Canada warned that a fraudulently elected government in Guyana will not be recognized:
We’re monitoring closely the legal proceedings related to Guyana’s elections. We believe a recount of the ballots is necessary to ensure every vote is counted. The will of the people must be respected for Canada to recognize the legitimacy of a duly elected government.
Concluding remarks
The court hearing is expected to continue today on whether a recount of the votes under CARICOM supervision should proceed. Whatever the outcome, and as pointed out in GECOM Chair in her most recent affidavit to the court, GECOM has the authority under Article 162 (1) (b) of the Constitution to intervene and arrange for the counting of the votes for Region 4 to continue in accordance with Section 84 of the Representation of People Act.
It is unfortunate that the Commission did not act earlier when the RO of Region 4 attempted to announce the results for Region 4 without complying with Section 84 of the Act and in violation of the Chief Justice’s ruling. All is, however, not lost, and GECOM must now act expeditiously to conclude the counting of the votes and to declare the winner of the elections. It has the authority to do so under the Constitution.
