Guyana’s Court of Appeal is set to rule tomorrow on the challenge that has been mounted to prevent the Guyana Elections Com-mission (GECOM) from using the results of the recount from the March 2nd elections to make a final declaration.
The announcement was made yesterday afternoon by the President of the Court’s panel, Justice of Appeal Dawn Gregory, after four hours of arguments by lawyers on the case brought by Eslyn David against the Chief Election Officer Keith Lowenfield and the Guy-ana Elections Commission (GECOM) to stop the declaration of the results of the polls.
Justice Gregory’s announcement came just at the end of a sharp exchange between Kim Kyte-Thomas, counsel for GECOM Chair Claudette Singh, and one of the respondents, Attorney General (AG) Basil Williams.
Kyte-Thomas, who was formerly at the Attorney General’s Chambers, had made the point that judges in the recent cases brought by Reeaz Holladar and Ulita Moore had identified election credibility issues as matters which would have to be determined by an elections petition. That point was made to affirm the argument on behalf of the GECOM Chair that the matters raised by David in the extant case were issues for an elections petition.
Williams intervened and declared that the Holladar and Moore cases were not about credibility.
As Kyte-Thomas sought to respond to the AG’s assertions, Trinidadian Keith Scotland, who was appearing for David, interjected and objected on the premise that she was engaging in an “ill-disciplined discussion” before applying to the court for a date on which judgment would be delivered.
The court, which is expected to hand down its ruling at 1.30 pm tomorrow, has been asked to decide on two main points of law—whether it has the jurisdiction to hear the case and whether the order issued by GECOM for the national recount of the votes granted the statutory body the power to decide on the credibility of the elections.
Lowenfield, despite echoing unproven allegations made by APNU+AFC and saying that the process did not meet the standard for free, fair and credible polls, had been asked to submit a report on the results in order for GECOM to proceed with a final declaration from the recount, which shows that the opposition PPP/C won the majority of votes and the presidency.
These results, which were certified by GECOM’s Secretariat, show that the PPP/C’s list of candidates has secured 233,336 votes compared to the 217,920 garnered by the incumbent APNU+AFC coalition. This means the PPP/C has won the elections by 15,416 votes.
David initiated the challenge via a provision in Article 177 (4) of the Constitution which says that that Appeal Court shall have exclusive jurisdiction to hear and determine any question as to the validity of an election of a president in so far as that question depends upon the qualification of any person for election or the interpretation of the Constitution.
Eight of the 11 respondents—the PPP/C, Opposition Leader Bharrat Jagdeo, presidential candidate Irfaan Ali, ANUG, TNM, LJP, TCI and Change Guyana—have argued that this application is fundamentally misconceived for a number of reasons, including that Article 177 (4) has not been activated because Guyana’s Parliament never developed regulations governing its implementation as provided for in Article 177(5). The Court of Appeal, therefore, has no jurisdiction, they contend.
Article 177 (5) provides that Parliament may make provision for giving effect to the Article with respect to the persons by whom, the manner in which and the conditions upon which proceedings for the determination of any question, such as is mentioned in 177 (4), may be instituted in the Court of Appeal.
Trinidadian Senior Counsel John Jeremie, on behalf of David, has countered this argument by stating that Guyanese jurisprudence has consistently ruled, in keeping with the 1971 case of Jaundoo v Attorney General of Guyana, that where no provision is made for approaching the Court in respect of a jurisdiction conferred upon it, the jurisdiction of the Court may still be exercised although no appropriate rules of procedure have been made.
“The argument of the respondents is further weakened when one looks at the plain language of Article 177(5). It provides that Parliament ‘may’ make provision for giving effect to” the provisions in respect of Article 177(4). If the intention was that the exercise of the rule-making power under Article 177(5) was a condition precedent to the exercise of the Court of Appeal’s jurisdiction under Article 177(4), then the legislature would have expressed itself in plain terms by the use of the word ‘shall,’” Jeremie contended.
In his written submission, he further argued that the completion of the electoral process by a declaration of the results is not a necessary precondition to invoke the jurisdiction of the Court of Appeal under Article 177(4).
‘Premature’
Eight of the respondents have contended that the wording of Article 177 (4) shows that it is only capable of being invoked after the election of a president has occurred.
With reference to several sections of Article 177, the PPP/C has stressed that a president is not elected until so declared by the Chairman of the Commission.
“There is simply no basis for any determination under Article 177(4) as the election is a sine qua non [absolutely necessary] to the exercise of any Article 177 (4) jurisdiction. This application is premature,” the submission filed on the party’s behalf by Senior Counsel Douglas Mendes and attorneys Devindra Kissoon and Anil Nandlall concludes, while referencing an application by Eusi Kwayana in 1980.
Jeremie later relied on this case to address the contention by the GECOM Chair that an application of Noscitur a sociis, the “context rule” of statutory interpretation, would show that the words in Article 177(4) relate to interpretation of the constitutional provisions in relation to the qualification of any person for election to the office of the president.
According to Jeremie, the ruling in the Kwayana case shows that the Court of Appeal’s jurisdiction, though circumscribed, has two limited bases and allows questions as to the validity of a president in so far as such questions depend upon the qualification of any person for election or upon the interpretation of the Constitution.
The two bases, he pointed out, are clearly not dependent upon each other.
“Therefore, it is submitted that any person may approach the Court of Appeal pursuant to Article 177(4) seeking the interpretation of any provision of the Constitution so far as such an interpretation touches and concerns an election of a President,” he maintained.
The provision of the Constitution which the case seeks to have interpreted is Article 177 (2) (b) and particularly the words “more votes cast”.
According to Jeremey. Article 177(2) directly concerns how a presidential candidate is to be declared as being elected president.
“The applicant seeks simply and properly [for the] Court of Appeal to interpret Article 177 in light of Order No. 60 of 2020 which has amended the law used to determine the valid results of this election,” he claimed.
Jeremie repeatedly stressed that the procedure for determining valid votes under the Representation of the People Act was fundamentally modified by GECOM and in turn fundamentally changed the way in which the CEO ought to calculate “the total number of valid votes of electors which have been cast for each list of candidates” under section 96 of the said Act.
He maintained that according to the order, the multipart and detailed procedure was made for the dual purpose of (1) “assuaging the contesting parties”; and (2) “determining a final credible count,” thus the procedure outlined in Section 83 of the Representation of the People Act has been replaced with the reconciliation process detailed in the recount order.
“GECOM, under its wide powers, has redefined (for the purposes of the 2 March 2020 election) the procedure for the count and the ultimate determination of valid votes… the ultimate effect of the order is that it has modified… the process for the determination of the validity of a vote. Thus a “vote” cannot simply be a ballot found in a ballot box. A vote, in order to be valid, must mean one that is properly reconciled against the electoral documents identified in the Order,” his submission for David explained, adding that by the same order GECOM has taken over the process of determining the validity of the votes.
“Under the electoral laws of Guyana there are no express provisions preventing GECOM from invalidating a vote that is irregular and/or fraudulent. In fact, pursuant to the plenary powers of GECOM under Article 162 of the Constitution GECOM must ensure fairness and impartiality. In so doing it ought to take action to reject all irregular and/or fraudulent votes if there is a sufficient bona fide basis for doing so,” it added.
Notably this argument was supported by Williams, the fourth named respondent in the case.
Williams told the court that based on the wording of the recount order the Commission has “clothed itself with the power to decide what a credible count is and by extension what is a credible election.”
He went even further by stating that GECOM has jurisdiction to declare that the elections are cancelled on the grounds of what he alleged were uncovered manifest and pervasive irregularities, anomalies and discrepancies.
Jeremie deviated with Williams on the issue of a cancellation or annulment of the elections.
Mendes later started his presentation by taking a dig at Williams for getting “hot under the collar” about wanting to ensure a free and fair elections, while ignoring the reported fraud by District Four Returning Officer Clairmont Mingo but adopting the mere allegations of irregularities made by the CEO. “There is no concern that the applicant is calling on the court to revert to a fraudulent count in the form of Mingo’s declaration,” he stressed.
According to Mendes, rather than ignore the irregularities in the recount as suggested by Williams, GECOM has said that it doesn’t have the capacity to investigate these claims.
The PPP/C and the other political parties represented in the court are arguing that the credibility of an election can only be decided by the High Court via an elections petition.
Singh’s submission has also made this argument.
“Any challenge to the validity of an election and any dispute or claim of any irregularities or illegalities in relation to an election can only lawfully form the basis of an elections petition after the result of the election has been made known,” her submission to the court argues.
Kyte-Thomas, during oral arguments yesterday, went on to note that the applicant’s contention that GECOM via the order granted itself powers to decide credibility cannot be supported as any such powers do not supersede the powers granted to the High Court via Article 163 of the Constitution. “The constitution is supreme,” she stressed.
The PPP/C, while presenting a similar argument in its submission, also contended that a determination of validity “can only judicially be arrived at after a trial process capable of and sufficient to permit the resolution of factual disputes.”
Meanwhile, Kashir Khan, appearing on behalf of The Citizenship Initiative and Change Guyana, told the Court that the order should have the legal weight of a regulation since it was not passed by the legislature. “It is on the third tier of legal instruments,” he stressed, while arguing that it does not supersede the Representation of the People Act or the Constitution.
