In a case brought by Eslyn David, the Guyana Court of Appeal this afternoon agreed by majority decision to issue an order that there be an interpretation of the words “valid votes cast” as per Article 177 (2) (b) of the Constitution of Guyana and the recount order as it pertains to the election of a President.
The court by a majority decided that it has the limited jurisdiction to interpret the article to mean that there be a determination of valid votes cast.
It is unclear what the immediate impact of this will be as the Guyana Elections Commission has concluded a recount that shows the PPP/C as the winner of the election. There is no pathway for GECOM to undertake any other assessment as it was on the verge of the declaration of a result.
President of the Court of Appeal panel, Justice Dawn Gregory and Justice Brassington Reynolds agreed that the order should be issued while Justice Rishi Persaud ruled that David’s application be thrown out in its entirety.
The Court of Appeal has since granted a three-day stay of its decision. It is likely that an application will be made to the Caribbean Court of Justice for this decision to be appealed. Other analysts have said that there is still nothing stopping GECOM from going ahead with its declaration since its position would be that valid votes have already been determined via the 33-day recount. The three-day stay granted by the court may however cause GECOM not to act until the expiration of this period.
The order for the interpretation of the words “more votes are cast” – i.e. the validity of the votes cast – was the only one sought by David which was granted by the Court.
The court had been asked to decide on two main points of law—whether it had 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.
David had sought the following orders from the court:
a) A Declaration that the GUYANA ELECTIONS COMMISSION has failed to act in accordance with the terms of the Order No. 60 of 2020 and the amended Order dated the 29th day of May, 2020, in that the GUYANA ELECTIONS COMMISSION has failed to determine a final credible count and or the credibility of the result of the General and Regional Elections held on the 2nd day of March, 2020, as required to do by Order No. 60 of 2020 and the amended Order dated the 29th day of May, 2020.
b) An Order that there be an interpretation of the words “more votes are cast” in Article 177 (2) (b) of the Constitution of Guyana.
c) An Order restraining the Chief Elections Officer from complying with the Direction of the Chairman of the Guyana Elections Commission as set out in a Letter dated the 16th day of June, 2020,to submit to the Guyana Elections Commission an Elections Report under Article 177 (2) ( b) of the Constitution of Guyana without the Guyana Elections Commission determining the final credible count and or the credibility of the General and Regional Elections held on the 2nd day of March, 2020, as required by the Order No. 60 of 2020 and the amended Order of the 29th day of March, 2020.
d) An Order restraining the Chief Elections Officer from complying with the Direction of the Chairman of the Guyana Election Commission as set out in a Letter dated the 16th day of June, 2020, to submit an Elections Report under Section 96 of the Representation of the People Act without the Guyana Elections Commission determining the final credible count and or the credibility of the result of the General and Regional Elections held on the 2nd day of March, 2020, as required by the Order No. 60 of 2020 and the amended Order of the 29th day of March, 2020.
e) An Order restraining the Chief Elections Officer from submitting to the Guyana Elections Commission an Elections Report under Article 177 (2) (b) of the Constitution containing votes which are not credible within the meaning of Order No. 60 of 2020.
f) An Order restraining the Chief Elections Officer from submitting to the Elections Commission an Elections Report under Section 96 of the Representation of the People Act, Chapter 1:03 containing votes which are not valid and credible.
In his comment on the decision, opposition-appointed GECOM Commissioner Sase Gunraj said: “(Court of Appeal) ruled 2-1: it has jurisdiction to hear the matter and that total votes means total valid votes cast. CEO (Chief Election Officer) already calculated total valid votes in his report. All he needs to do now is calculate seats. Get this done!”