It will not be until 11 am today that the Guyanese public will know whether a recount by GECOM is going to take place soon, or at all. That is when the Court of Appeal will give its decision in the appeal by Ulita Moore against the decision of the Full Court which ruled last week that the High Court had no jurisdiction to determine Moore’s case. Moore obtained injunctions against GECOM, thereby preventing the recount of the votes of Region 4. Moore’s case was dismissed.
The unsuccessful party in the case before the Court of Appeal is likely to appeal to the Caribbean Court of Justice (CCJ). If the Court of Appeal upholds the decision of the Full Court, GECOM could and may proceed with the recount, even if there is an appeal to the CCJ. There would be no legal obstacle to it doing so. Whether or not it will, no one knows. But the dilatory behaviour of GECOM so far suggests that it is risk averse or worse, to put it mildly.
If the Court of Appeal sets aside the decision of the Full Court, it would reinstate the injunctions of the High Court as well as Moore’s case. GECOM will then be legally unable to effect a recount. It would have to await the outcome of the expected appeal to the CCJ. If the CCJ agrees with a possible Court of Appeal decision to set aside the judgment of the Full Court, the matter will return to the High Court for a full hearing on the merits. The cycle of appeals will resume. This process will last for many weeks.
Guyanese, therefore, have a while, and possibly a long while, to wait before the saga of the recount is resolved. Many believe that it will never be. The APNU+AFC coalition is not going to go as far as defying world opinion and the anticipated devastating sanctions, and then allow the mere humbug of a court decision to derail its plans. As Prime Minister of Trinidad and Tobago, Dr. Keith Rowley, said in an extensive interview on Friday, expressing great concern about the Guyana situation: “I have a feeling that this is not going to end well.”
News reports suggest that GECOM has not yet got its act together. Having taken the opportunity first to “study” the decision of the Chief Justice in the Holladar matter, then seeking time to “study” the decision of the Full Court before engaging in discussions, without seeking the same opportunity to “study” the decision of High Court before obeying the injunction with alacrity, a decision was arrived at for the recount. Ordinary mortals would be excused for assuming that GECOM’s in-house legal adviser, alone or together with its formidable external lawyers representing it in the two cases might, as part of their responsibility, be invited to explain the decision to the lay members of the Commission who, in their “studying” of the decision, could potentially misinterpret it, notwithstanding their known intellectual gifts which, however, do not include municipal law. As far as is known, Orders of Court, which are generally short documents issued by the Registrar of the Supreme Court, setting out in full the orders made by the Judge based on the decision, are the binding documents, not the written decisions.
Three issues have now emerged from within GECOM and are in the public domain for which it is claimed that resolutions are needed. Firstly, what is meant by a recount and how to proceed with it. Secondly, whether the recount would mean a recount of the votes or whether all the material in the ballot boxes such as proxies and people who voted without identification cards would be considered. Thirdly, the matter of what will happen at the end of the recount has not been addressed.
The first observation that is necessary is that GECOM has extensive powers under article (162)(1)(b) to issue instructions and take actions to ensure impartiality, fairness and compliance with the Constitution or any Act of Parliament by persons performing duties connected to the Constitution or Act of Parliament. Therefore, on the first and second issues, when GECOM decides on a recount, it immediately triggers section 84(2) of the Representation of the People Act, which provides for a recount. Section 84(2) provides that the recount shall be done in accordance with the relevant sub sections of section 82, section 84 and section 87. These sections provide detailed guidance and answers all the questions about a recount. As to the final issue about what happens at the end of the recount, section 89(e) of the above act provides the answer. It states: The Returning Officer shall “publicly declare the result of the final counting.”
Of the seven members of GECOM, three are lawyers and four are not. At least three of the four have the purported capacity to read and understand legal stuff. All the seven members of GECOM have to do is read the above sections. They will discover that it is not rocket science. All the answers are laid out with great clarity.
