Dear Editor,
Jurisdiction is conferred on the Guyana Elections Commission (GECOM) by the last recital in Order No.60 of 2020 which derives its authority from article 162 (1) (b) and section 22 of the Election Laws (Amendment) Act No.15 of 2000 to resolve irregularities, discrepancies and anomalies occurring in the elections process.
The Order No. 60 of 2020 is subsidiary legislation within the meaning of section 2 of the Interpretation and General Clauses Act Cap. 2:01 and came into operation upon publication in the Official Gazette on May 4th, 2020 pursuant to Section 21(1) of the said act, and it is the law of the land.
It is respectfully contended in light of the evidence that is before the Commission as contained in the Observation Reports and other submissions with supporting documentations that GECOM ought not to request the Chief Election Officer (CEO) to submit a report under Section 96 of the Representation of the People Act Cap.1:03 pursuant to paragraph 14 of the said Order, on the ground that the irregularities, discrepancies and anomalies affected the integrity and credibility of the elections. See: –
In the case of Chilima anor v Mutharika Constitutional Reference No.1 of 2019, Malawi HC 431, where there were allegations of irregularities and anomalies, it was held that the irregularities and anomalies had been so widespread, systematic and grave that the integrity of the results had been seriously compromised. Further, that the results of the elections could not be trusted as a true reflection of the will of the voters as expressed through their votes cast during the May 21st, 2019 elections.
In this case the irregularities, anomalies and discrepancies were occasioned when the following occurred: –
submitted, altered, varied and transmitted results in clear disregard of the process recorded in the tally sheet;
accepted tally sheets from centres where the total number of votes cast exceeded the total number of registered voters;
total number of used and unused ballot papers was lower than the ballot paper issued;
the number of votes of candidates was not balancing with the total number of valid votes cast;
Presiding Officers failed to prepare and provide summary of the final results, record of the polling process, among others.
The five-member Bench imposed a duty on the Elections Commission to respond to requests by contesting parties to resolve irregularities, anomalies and discrepancies before declaring the results of the elections. The Court held that a failure to do so can amount to bias on the part of the Commission and a gross and unjustifiable dereliction of duty under the Malawian Constitution (similar to article 162(1)(b) of the Guyana Constitution) to conduct impartial elections.
Yours faithfully,
Basil Williams SC
Attorney General and Minister of Legal Affairs
