The Commonwealth Charter recognises the inalienable right of individuals to participate in democratic processes, in particular through free and fair elections in shaping the society in which they live and for this right to be protected and respected.
Commonwealth Secretary General Patricia Scotland
In last week’s article, we referred to the judicial intervention sought by one Eslyn David in relation to the recently completed recount of the votes cast in the 2020 elections. The recount showed that the PPP/C won the elections by 15,416 votes, having garnered 233,336 of the valid votes cast against APNU+AFC’s 217,920. All the political parties contesting the elections, except APNU+AFC, have signed the statements of recount for all the regions, certifying the accuracy and validity of the recount. The CARICOM Scrutinising Team also issued its report in which it stated that the results reflected the will of the people, except for minor discrepancies that did not have a material effect on the overall result. Both the President and GECOM have stated that the elections were free and fair, a view that was also held by all the accredited observers as well as the diplomatic community that observed the elections.
Application to the Court of Appeal
Ms. David filed an application to the Court of Appeal requesting it to issue the following:
a) A declaration that the Elections Commission failed to act in accordance with the terms of Order No. 60/2020 (gazetted Order) for the recount in that it failed to determine ‘a final credible count and/or the credibility of the elections’;
b) An Order for the interpretation of the words “more votes are cast” in Article 177(2)(b) of the Constitution;
c) An Order restraining the Chief Election Officer (CEO) from complying with the direction of GECOM Chair to submit a report under Article 177(2)(b) without the Commission determining ‘the final credible count and/or the credibility of the elections’ as required by the gazetted Order;
d) An Order restraining the CEO from complying with the direction of GECOM Chair to submit an elections report under Section 96 of the Representation of the People Act (ROPA) without the Com-mission determining the final credible count and/or the credibility of the result of the elections, as required by the gazetted Order;
e) An Order restraining the CEO from submitting to the Commission an elections report under Article 177(2)(b) of the Constitution containing votes which are not credible within the meaning of the gazetted Order; and
f) An Order restraining the CEO from submitting to the Commission an elections report under Section 96 of the ROPA, containing votes which are not valid and credible.
The application was made under Article 177(2)(b) of the Constitution which states that:
… if more votes are cast in favour of the list in which a person is designated as presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as president and shall be so declared by the chairman of the Elections Commission acting only in accordance with the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.
Opinion is divided as to whether the Court of Appeal should have entertained the application, considering the requirements of Article 177(4) of the Constitution. That article provides for the Court of Appeal to 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’. (Emphasis added.) Since a declaration is still to be made as to who is the President, there can be no consideration of any dispute as regards the person’s qualification, and therefore Article 177(4) does not appear to apply. Indeed, the GECOM Chair, as a respondent to Ms. David’s challenge, has stated that such a request should not be entertained at this time in that it is premature and that ‘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’.
Order No. 60/2020 sets out the procedures to be followed for the recount. However, in none of the 16 paragraphs, were the words ‘final credible count and/or the credibility of the elections’ used. The only reference is in one of the items in the preamble which states: ‘AND WHEREAS the President and the Leader of the Opposition and all contesting parties agreed to a CARICOM proposal for a total recount of all electoral districts as a means of assuaging the contesting parties and determining a final credible count’. It is therefore incorrect to state in the application to the Court that the Order refers to the above words. That apart, the determination of the credibility of the recount and of the elections requires the exercise of judgment, and one would expect the CARICOM Scrutinising Team, as ‘the most legitimate interlocutors’ to make that judgment. Indeed, the President is on record as having stated that ‘Guyana is equally confident in the legitimacy, credibility and competence of the CARICOM team to perform its task’.
The challenge also referred to Section 96 of the ROPA that provides for the CEO to calculate the total number of valid votes for each list of candidates on the basis of the votes counted and the information furnished by Returning Officers (ROs) to arrive at the results of the elections. (Emphasis added.) He is then required to prepare a report for the Commission to be used as a basis for declaring the election results. This section does not confer on the CEO the authority to determine the credibility of the votes cast, and he would be in breach of it if he were to arrive at results that are different from those furnished by the ROs.
Court of Appeal ruling
The Court of Appeal hearing commenced on 19 June at which it was decided that there were two main issues to be considered: whether the Court has jurisdiction to hear the matter; and whether the Order issued by GECOM for the recount of the votes, granted the Commission the power to decide on the credibility of the elections.
Last Monday, by majority decision, the Court handed down its ruling that it has jurisdiction to hear the matter. The Court also agreed to issue an Order interpreting “more votes cast” in the context of in Article 177(2)(b) of the Constitution to mean “more valid votes cast”. By Section 87(2) of the ROPA, an invalid vote is one which: (i) does not bear the official stamp; (ii) does not indicate which list of candidates the vote is for, or which is void for uncertainty; (iii) indicates that the vote is for more than one candidate; or (iv) the identification of the elector is shown.
For the 2020 elections, the total votes cast amounted to 464,506 of which 4,211 were rejected in accordance with this section, leaving a total of 460,295 valid votes. For the 2015 elections, valid votes cast amounted to 409,857.
The CEO’s second report on the recount
Despite a three-day stay of execution of the Court of Appeal ruling, the CEO issued a second report to the Commission the following day on the results of the recount. This time, he once again unilaterally rejected some 25 percent of the valid vote cast, or 115,000 votes, on the grounds that they were affected by allegations of irregularities and were therefore not credible. Needless to mention, most of the allegations remain unproven and in some cases, they were shown to be groundless. The CEO indicated that he was guided by the Court’s ruling. Earlier, he had issued a report in response to the Commission’s instruction for him to use the recount results. However, in violation of the instruction, the CEO rejected some 60 percent of the valid votes cast for the same reason.
In defence, the CEO stated that he is a constitutional officer and has fulfilled his responsibilities under the Constitution. He is, however, not the holder of a constitutional office and therefore cannot act independently. Rather, he is an employee of the Commission, as reinforced by paragraph 16 of Order 60/2020: ‘For the avoidance of any doubt, the Chief Election Officer and every person appointed or authorized to perform any act or functions by virtue of this Order, are and shall remain subject to the general supervisory power of the Commission’. (Emphasis added.)
Request for judicial review by the CCJ
The Opposition Leader and the presidential candidate for the PPP/C have filed an appeal with the Caribbean Court of Justice (CCJ) against the ruling of the Guyana Court of Appeal. Among the remedies sought are interim orders:
(a) Restraining the CEO from issuing his report under Section 96 of the ROPA;
(b) Restraining GECOM, the CEO and/or servant or agent of GECOM from taking any further steps to determine whether the recounted votes as tabulated by the CEO constitutes ‘a final credible count’; or otherwise enquiring into the validity or credibility of the tabulated votes pending the determination of the application; and
(c) Restraining GECOM, the CEO and/or any servant or agent of GECOM from embarking on any course of conduct which would usurp the exclusive jurisdiction exercised by the High Court under Article 163 of the Constitution;
After the hearing of the appeal, the CCJ is asked to issue a decision that the Guyana Court of Appeal lacked jurisdiction to hear the matter brought by Ms. David, and an Order to set aside the latter’s ruling. The CCJ has since issued the necessary interim orders and is expected to make a ruling on Wednesday whether it has jurisdiction to hear the appeal, and if so, to proceed to hear the substantive issues.
Concluding remarks
The results of the 2020 elections have shown beyond doubt that the APNU+AFC has lost the elections. It has so far refused to concede defeat and has been trying every possible means to destroy the validity and credibility of the original vote count as well as the recount. It agreed very reluctantly to the recount only after the international condemnation of the attempted manipulation of the results for Region 4. During the recount, every opportunity was taken to raise so far unfounded allegations of irregularities during the voting process.
The CEO has been complicit in the whole scheme of things by discarding, first 60 percent of valid votes cast, then 25 percent after the Court of Appeal ruling, to hand the APNU+AFC victory, without first investigating the truth or otherwise of the allegations. In any event, it is beyond the CEO’s mandate to not only carry out such investigation and draw conclusions but also to pronounce on the validity and credibility of the elections.
Should the Commission and the courts allow the CEO to succeed in his act of conspiracy, it will mark the fifth occasion in the history of this country that the will of the people to elect a government of their choice would have been thwarted. This is a betrayal of not only the national trust but also a serious human rights violation and a crime against humanity for which all those involved, directly or indirectly, should be prosecuted.
