It is respectfully submitted that such a chal lenge cannot be entertained at this time on the
basis that it is premature. 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 election petition after the result of the election has been made known.
GECOM Chair
Today marks 112 days since the 2020 general and regional elections were held, the results of which are yet to be officially declared to enable a new government to be formed. This is in contrast to the 2015 elections when the results were declared and the new President sworn in within five days of the elections. The problem is compounded by the virtual lockdown of the country due the COVID-19 pandemic, thereby adversely affecting the lives and well-being of citizens as well as the state of the economy.
An indispensable aspect of democratic governance is the role of the Legislature as one of three pillars of government. It is this forum where elected officials deliberate on policies for economic and social development, pass relevant legislation to give effect to such development, approve funding to meet the cost of public services, and receive reports on the performance of the various sectors of the economy, among others. It has been over a year since the National Assembly met, and for 2019 it convened on only four occasions – 3 January, 26 April, 15 May and 23 May. There is also no budget for 2020, and it is unclear how funding was accessed to meet expenditure beyond 30 April 2020 since the Constitution and other legislative arrangements do not permit access to the Consolidated Fund beyond this date.
The 2018 Auditor General’s report has been held in abeyance pending the convening of the Assembly and has therefore not been made public. As a result, citizens are yet to learn how their taxed dollars have been spent for that year. The Public Accounts Committee (PAC) is also still to complete its examination of the public accounts beyond 2014. Without the PAC reports, the Government has not fully and properly discharged its financial stewardship for the period 2015-2018.
In today’s article, as we have done in previous ones, we highlight the significant events that took place in the last week or so in relation to the 2020 general and regional elections.
CEO’s report to the Commission
On 13 June, the Chief Election Officer presented his report to the Elections Commission on the recount of the votes cast in the 2020 elections, as required by paragraph 12 of the gazetted Order of 4 May. That paragraph states that ‘[t]he matrices for the recount of the ten (10) Electoral Districts shall then be tabulated by the Chief Election Officer (CEO) and shall be submitted in a report, together with a summary of the observation reports for each District, to the Commission’.
During the recount, GECOM staff recorded in the observation report for each region several allegations made by the APNU+AFC of irregularities, including voting by persons who have migrated and were not present in the country on polling day, or who have died prior to the date of the elections. Most of these allegations, however, remained unsubstantiated while some have been refuted by evidence to the contrary. The other political parties as well as observers point out that the APNU+AFC was not in favour of the recount and that the allegations were part of an orchestrated attempt to not only discredit the recount but also the elections as a whole.
Having summarized the allegations, and without establishing their truth or otherwise, the CEO concluded that in respect of each region, ‘the criteria of impartiality, fairness, and compliance’ with provisions of the Constitution and the Representation of the People Act do not appear to have been satisfied, and that it could not be ascertained that the results met ‘the standard of fair and credible elections’. The CEO obviously went beyond his remit that requires him to only tabulate the recount results and summarise the contents of the observation reports, and not to express any opinion or to draw conclusions.
The CEO then made a most bizarre statement that the anomalies affected some 60 percent of the valid votes cast, and that if those results are disregarded, APNU+AFC would have garnered 125,010 votes, with PPP/C receiving 56,626 votes! Indeed, he appeared to advocate the disenfranchisement of approximately 280,000 voters, mainly from the opposition strongholds. It would be interesting to learn what were the CEO’s conclusions in the first report he had submitted to the Commission which included the fraudulent declaration of the Returning Officer of Region 4. That report has not been made public.
CARICOM Scrutinising Team’s report
Last Monday, the CARICOM Scrutinising Team’s report was presented to the GECOM Chair. The overall conclusion is that while there were some administrative failings and minor flaws, there was nothing to warrant a challenge to ‘the inescapable conclusion that the recount results are acceptable and should constitute the basis of the declaration of the results of the March 02, 2020 elections. Any aggrieved political party has been afforded the right to seek redress before the courts in the form of an election petition’.
The following are some of the specific findings contained in the report:
The Team did not witness anything which would render the recount, and by extension, the casting of the ballot on 2 March, so grievously deficient procedurally or technically, (despite some irregularities), or sufficiently deficient to have thwarted the will of the people and consequently preventing the election results and its declaration by GECOM from reflecting the will of the voters;
The public utterances of some GECOM Commissioners, political pundits and politicians may have sounded an ominous tone, with the partisan driven and distorted narrative on migrant and “phantom voting”, and implied voter impersonation;
The gazetted Order for the recount established in part a convoluted process for the final declarations of the results of the election which required submissions of reports and resubmission of reports as well as deliberations of the Commission before a final declaration could be made.
The Order called for an audit rather than a mere counting of the ballots, which was a ‘colossal’ error since it facilitated delay in ensuring that the recount could not be completed within the stipulated period;
Many of the issues that arose contributed to excessive delay in what was to be a technical exercise but which proved to be a political exercise. This was done primarily with the political objective of preparing the groundwork for a post recount legal challenge of the recount. The public statements of the Attorney General on the validity of the recount was a snub to CARICOM;
The decision to insist on the elaborate checklist for the recount was a questionable one, indeed a bad decision, which contributed to the lengthy and unreasonable length of time to recount the ballots.
Many allegations were made of so-called migrant voters (out of jurisdiction) and “phantom voters” but no proof was offered as to the ineligibility of the persons who voted;
The level of aggression displayed by some agents in the recount workstations left much to be desired. Indeed, the conduct displayed by some APNU+AFC agents was totally unacceptable;
The queries raised were viewed as a fishing expedition designed to gather data for a possible election petition. They were not materially relevant to the recount of the ballot, and there was no evidence as to who were the ultimate beneficiaries of the alleged “ghost voting” and voter impersonation;
The absence of the statutory documents in the 29 ballot boxes was not fatal to the recount but there is need for a serious investigation by GECOM. It is odd that such a significant number of boxes were so impacted, if the workers were well-trained, as claimed by the CEO;
There was no evidence of bias in the errors that might have occurred on poll day or of any deliberate and purposeful intention to subvert the poll and the recount process;
The identified irregularities did not constitute sufficient grounds to invalidate the tabulation of the recount votes and to challenge the integrity of the recount process. While there were some irregularities, and violations of the gazetted Order and work processes, these were insubstantial;
While GECOM is described as an independent body, it is undoubtedly a political Commission, and herein lies most of the problems, the paralysis, and the factionalism experienced by that body. The level of internal discord which is acutely manifested in the public posturing of individual Commissioners, was on full and ugly display in the 2020 elections and its aftermath.
The structural independence of GECOM from the machinery of government is not equated with its impartiality. Given the intrinsic distrust and ethnic polarisation in the country, GECOM was never conceptualised as an institution which would exemplify autonomy from partisan political influences; and
The controversial nature of the 2020 elections provided an opportunity to revisit the electoral governance system, especially the role of GECOM in view of its less than stellar performance.
The Team made a number of recommendations, including: (i) the immediate rethinking of the structure of GECOM, particularly with respect to selection of the Commissioners; (ii) a political audit of GECOM; (iii) greater emphasis on voter education; (iv) a code of conduct governing the behaviour of party agents; (v) investigation of the missing documents from the 29 ballot boxes; and (vi) re-registration of all voters.
The Commission’s ruling on the CEO’s report
Last Tuesday, the GECOM Chair wrote to the CEO requesting him to submit a report using the results of the recount by Thursday. In a media release, GECOM reported the Chair as having explained that while some of the allegations are of a serious nature, the Commission does not have the power to carry out an investigation that requires examining and re-examining witnesses or to procure official documents. She referred Article 163 (1) (b) of the Constitution which confers on the High Court the exclusive jurisdiction to determine the validity of an election and asserted that: (i) GECOM cannot clothe itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election; (ii) it has no jurisdiction to annul an election; and (iii) the matters raised will have to be dealt with via an elections petition.
Non-submission of CEO’s report
Last Thursday’s deadline passed without the CEO submitting the requested report. According to GECOM’s spokesperson, this was because an application was filed with the Court of Appeal seeking a number of orders. One such order was to restrain the CEO from complying with the request by GECOM Chair without the Commission determining ‘the final credible count and/or the credibility’ of the elections’. The planned meeting on the same day also had to be aborted because of the absence of two government-appointed Commissioners, as there was no quorum.
The Court of Appeal’s hearing of the motions commenced last Friday with main two issues being considered. The first is whether the court has jurisdiction to hear the matter, as the motion was filed under Article 177(4) of the Constitution which states that:
The Court of Appeal 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 …; and any decision of that Court under this paragraph shall be final.
The second issue is whether the Order issued by GECOM for the national recount of the votes, granted the Commission the power to decide on the credibility of the elections. A ruling is expected today.
