Dear Editor,
Basil Williams’ misconception of the law is legendary. It is manifest in his latest missive published in the Stabroek News on the 14th day of June 2020, under the caption “In light of evidence before it GECOM ought not to request final report from CEO”.
Williams argues that Order no. 60 of 2020, empowers GECOM “…to resolve irregularities, discrepancies and anomalies occurring in the elections process.” He posits that there is “evidence” before the Commission, as contained in the Observation Report with “supporting documentation”. As a result, he reasons, GECOM ought not to request the Chief Election Officer (CEO) to submit a report under Section 96 of the Representation of the People Act. He cites the case of Chilima Anor v Mutharika Constitu-tional Reference No. 1 of 2019, Malawi HC 431.
A convenient place to begin is to remind that Guyana’s legal system is that of constitutional supremacy, in which the doctrine of separation of powers inheres. The Constitution distributes the State’s responsibilities and duties unto various organs of the Constitution, with each organ being equipped with enabling legislation regarding their mandates and functional responsibilities. By virtue of the rule of law, none can exceed their individual mandate or jurisdiction. Should any of these creations, whether they be institutions or Public Officers, exceed their power and make decisions or take actions outside of the scope of their authority, the High Court is resided with powers to review their decisions and actions and strike it down as ultra vires, without and in excess of jurisdiction, and declare same a nullity. It is also the doctrine of separation of powers that keeps these constitutional organs within the four corners of the scope of their authority and eschew their trespass onto the functional domain of other constitutional organs.
It is against this backdrop that Article 162 of the Constitution vests GECOM with only the following mandate:
ART 162 (1) “The Elections Commission shall have such functions connected with or relating to the registration of electors or the conduct of elections as are conferred upon it by or under this Constitution or, subject thereto, any Act of Parliament; and, subject to the provisions or this Constitution, the Commission –
shall exercise general direction and supervision over the registration of electors and the administrative conduct of all elections of members of the National Assembly; and
shall issue such instructions and take such action 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.”
It must be noted that though those powers conferred upon GECOM are broad and wide, they do not include, either expressly or by implication, a power to investigate or to hear or determine complaints of any type. Moreover, those powers are limited by the chapeau “subject to the Constitution”.
Not to leave the reader in any doubt, in the very next provision of the Constitution, its framers provide:
ART 163 (1) “…the High Court shall have exclusive jurisdiction to determine any question –
“(b) Whether –
either generally or in any particular place, an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission;”
The framers used the term “exclusive” to make it clear that no other agency is vested with this power, including, GECOM and of course the Chief Election Officer. It is clear, therefore, that any attempt by GECOM or the Chief Election Officer to investigate or hear irregularities or allegations of unlawful conduct in respect of an election, would be in violation of Article 163, the doctrine of separation of powers and ultra vires, as they would be encroaching upon the constitutional province of the High Court. It is equally clear that in so far as the Order speaks to resolution of irregularities, discrepancies and anomalies occurring in the elections process, it conflicts with the Constitution and is therefore, unconstitutional. Article 8 of the Constitution declares the Constitution as the supreme law and any law which is inconsistent with the Constitution is void to the extent of the inconsistency.
However, let us for argument sake, assume that GECOM lawfully possesses a power to investigate, hear and determine allegations of irregularity. The right to vote is a most sacred legal right. The cannons of natural justice mandate that no one can be deprived of a right, or can suffer any adverse decision, without that person being afforded a fair and adequate opportunity to be heard; this includes the right to be represented by a lawyer of one’s choice, to be provided with the evidence against him and the right to be allowed a fair and reasonable opportunity, not only to test that evidence, but also to lead evidence of his own to rebut that evidence.
It cannot be disputed that Lowenfield carried out no investigation, held no inquiry and afforded none of the voters nor their political party any opportunity to be heard, but yet invalidated tens of thousands of votes. He did so not on “evidence”, as Williams posits, but merely acting upon the baseless, false and untested allegations of APNU/AFC. Under no circumstance whatsoever, can this be legal or proper and a court of law will be bound to set aside those aspects of his Reports, ex debito justitiae. Most fundamentally, the Order, neither expressly, nor by implication, confers upon Lowenfield any power whatsoever to do anything other than, arithmetically tabulating the totals of each electoral district and summarizing, that is to say, précising the Observation Reports. In expressing the various opinions, which he did, he acted ultra vires and perversely.
Basil Williams cites the Malawian case of Chillema anor v Mutharika Constitutional Reference No. 1 of 2019, Malawi HC 431, to support his contentions. He deliberately and dishonestly omits to inform that in Malawi, the constitutional construct is radically different from ours. The Elections Commission in that country, is specifically empowered to perform the quasi-judicial functions of hearing and determining allegations of irregularities. In the event that a person is aggrieved by a decision of the Commission performing this function, they have a right of appeal to the High Court of that country. Clearly, that case is inapplicable to our circumstances.
An accurate exposition of the law was recently done by the Court of Appeal in Zimbabwe in the case of Nelson Chamisa v Emmerson Mnagagwa et al (2018). Zimbabwe’s legal and constitutional system strongly resembles ours. In this case, an elections petition was filed, challenging the election of Mnagagwa as President, as declared by the Elections Com-mission. The allegations were multiple and similar to those made by the APNU/AFC. Not-withstanding, the Elec-tions Commission declared the results based upon the count of the ballots cast. The results were challenged in the High Court by an election petition, as is the proper course in Zimbabwe, in Guyana and in almost every other part of the Commonwealth. In the course of its judgement, the Court adumbrated the following principles of law:
“The general position of the law is that no election is declared to be invalid by reason of any act or omission by a returning officer or any other person in breach of his official duty in connection with the election or otherwise of the appropriate electoral rules if it appears to the Court that the election was conducted
substantially in accordance with the law governing elections and that the act or omission did not affect the result.
As an exception to this general position, the Court will declare an election void when it is satisfied from the evidence provided by an applicant that the legal trespasses are of such a magnitude that they have resulted in substantial non-compliance with the existing electoral laws.
Additionally, the Court must be satisfied that this breach has affected the results of the election. In other words, an applicant must prove that the entire election process is so fundamentally flawed and so poorly conducted that it cannot be said to have been conducted in substantial compliance with the law. Additionally, an election result which has been obtained through fraud would necessarily be invalidated.
From the foregoing, the Court will only invalidate a presidential election in very limited and specific circumstances, if:
1. The results are a product of fraud.
2. The elections were so poorly conducted that they could not be said to have been in substantial compliance with the law.
It is for the applicant to prove to the satisfaction of the Court that the election was conducted in a manner which fell substantially below the statutory requirements of a valid election and that the result was materially affected warranting a nullification of the result or invalidation of the election.”
The above judicial pronouncements, accurately reflect the legal position in Guyana, that is, it is for GECOM to declare the results as per the recount and for any aggrieved party to challenge those results by way of an election petition to be filed in the High Court. Neither the law nor the Constitution offers GECOM the option of a non-declaration of the results. The duty to declare the results as per a count of the ballots cast is a mandatory duty imposed upon GECOM by the Constitution.
Yours faithfully,
Anil Nandlall