Now Guyana must return to its state of respect for the established will of the people; and the new Government must be declared and installed. Caribbean democracy demands no less. Our country, our region, our hemisphere, our world – will not allow less. Guyana’s Elec-tions Commission, GECOM, fortified by the Court’s judgement and the people’s demonstrated will, must make democracy prevail. That is its constitutional duty.
Sir Shridath Ramphal
Last Wednesday, the Caribbean Court of Justice (CCJ) unanimously agreed that it had jurisdiction to hear an appeal of the decision by the Guyana Court of Appeal in the case Irfaan Ali et al v Eslyn David relating to questions surrounding the recount of the 2 March 2020 elections results. The respondent’s lawyers had argued that Article 177(4) of the Constitution confers exclusive jurisdiction on the Guyana Court of Appeal on the matter and therefore no such jurisdiction exists on the part of the CCJ. That article reads:
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.
As can be noted, the above-mentioned article refers to questions regarding the qualification of a President. However, a declaration of the results of the elections is yet to be made. The CCJ ruled that Court of Appeal did not have jurisdiction to hear the matter which, by Article 163, confers upon the High Court that jurisdiction. Accordingly, it set aside the Court of Appeal ruling and threw out the Chief Election Officer’s (CEO) report which the CEO claimed was based on that ruling.
The following is a summary of the CCJ ruling, as presented by the President of the CCJ. In his introductory remarks, Justice Saunders referred to the Constitution that provides for Guyana to be a democratic sovereign State where elections that are free and fair are ‘the lifeblood of true democracy’.
Recounting the events
Justice Saunders recounted the following events that led to the appeal to the CCJ:
(a) On 13 June, the CEO submitted his report to the Elections Commission in which he referred to what he considered widespread irregularities, resulting in his inability to ascertain that the results met the ‘standard of fair and credible elections’. The CEO then took upon himself to subtract the votes contained in the affected ballot boxes from the total votes cast and previously counted;
(b) Having reviewed the CEO’s report, the Com-mission agreed that, while the allegations of irregularities raised were serious enough to warrant an investigation, the Constitution vests in the High Court exclusive jurisdiction to determine the legality of an election. Accordingly, the CEO was requested to submit his report using the recount results;
(c) Before the CEO could comply with the request, one Ms. David sought the intervention of the Court of Appeal under Article 177(4) challenging the credibility of the recount. She requested the Court to: (i) interpret of the words “more votes are cast” in Article 177(2)(b) of the Constitution; and (ii) restrain the CEO from complying with the Commission’s request without GECOM first determining the credibility of the elections under the gazetted Order and Section 96 of the Representation of the People Act (ROPA);
(d) By majority decision, the Court of Appeal held that it had the jurisdiction to hear the matter and proceeded to interpret “more votes are cast” to mean “more valid votes are cast”. The dissenting opinion was rendered by Justice Rishi Persaud who held that the Court did not have jurisdiction to hear the application as Parliament had not made any provisions giving effect to Article 177(4) and no genuine question was raised concerning the validity of the election of the President. He also held that: (i) the application was premature as no President had yet been declared to have been elected; and (ii) the High Court has the exclusive jurisdiction to determine the validity of an election pursuant to Article 163 of the Constitution;
(e) The Court of Appeal granted a stay of its judgment for three days. However, the following day, the CEO submitted another report to the Commission in which he invalidated over 115,000 ballots previously counted and certified as valid during the recount process. He justified his action by stating it was based on the Court of Appeal’s decision; and
(f) On 23 June 2020, Messrs. Ali and Jagdeo applied to the CCJ for special leave to appeal the Court of Appeal decision. Leave was granted, and the parties involved were requested to make oral and written submissions on two broad issues: (i) Whether the Court of Appeal had jurisdiction to entertain Ms. David’s application and what are the consequences in relation to the proposed appeal; and (ii) If the Court of Appeal rightly assumed jurisdiction but it exceeded its jurisdiction, what are the consequences in relation to the proposed appeal.
CCJ as the final court of appeal for Guyana
Article 123(4) of the Constitution gives Parliament the power to make the CCJ the final court of appeal for Guyana. To give effect to this, the CCJ Act of 2004 was passed, and it is this Act that determines the CCJ’s jurisdiction. In the case of Barbados Rediffusion Service Ltd v Mirchandani, it was determined that the CCJ had jurisdiction to entertain applications for special leave to appeal from any decision of the Court of Appeal in any civil matter. The CCJ, however, acknowledged that Section 4(3) of the Act does not give it jurisdiction to hear matters relating to any decision of the Court of Appeal ‘which at the time of entry into force of this Act were declared to be final by any law’. One such law is Article 177(4). (Although not mentioned, the Court of Appeal decision that was the subject of appeal, was made last month, some 24 years later.)
Lack of jurisdiction of the Guyana Court of Appeal
Ms. David’s application to the Court of Appeal relates to the validity of the elections. It was made under Article 1774(4) which deals with questions surrounding the validity of the election of a President as it relates to his/her qualification. However, ‘if no such question arose, or if the validity of the election did not depend on a question of the qualification of the person or the interpretation of the Constitution, then the Court of Appeal would not have jurisdiction’. Ms. David’s application should therefore have been addressed to the High Court under Article 163 via an election petition within 28 days of the declaration of the results, and any decision is appealable right up to the CCJ as the final court of appeal.
Article 177(4) was always intended to operate after the President had been elected following the determination that more votes were cast in favour of the list in which he/she was designated as Presidential candidate than in favour of any other list.
“More votes cast” versus “more valid votes cast”
The Court of Appeal sought to interpret Article 177(2) (b) in conjunction with the gazetted Order for the recount. However, the CCJ was of the view that there was no need to do so as that article ‘has always said what it meant and meant what it said’. That article states that a person is deemed to be elected as President when ‘more votes are cast in favour of the list in which [that person] is designated as Presidential candidate than in favour of any other list’.
In referring to the Court of Appeal’s interpretation that “more votes cast” means “more valid votes cast”, the CCJ stated that the concept of “valid votes” is well known to the legislative framework governing the electoral process and has a particular meaning in that context. The words also appear several times in the ROPA, including as Section 96 that calls on the CEO to calculate ‘the total number of valid votes of electors which have been cast for each list of candidates’.
The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots, an exercise that is conducted in the presence of the duly appointed candidates and counting agents of contesting parties. It is after such invalid votes are weeded out that the remaining “valid” votes count towards a determination of the elections results. Unless and until an election court decides otherwise, the votes already counted by the recount process as valid votes are incapable of being declared invalid by any person or authority.
By the unnecessary insertion of the word “valid”, the Court of Appeal impliedly invited the CEO to engage unilaterally in an unlawful validation exercise. This trespassed on the exclusive jurisdiction of the High Court established by Article 163. It was inconsistent with the constitutional framework for the CEO or GECOM to disenfranchise thousands of electors in a seemingly non-transparent and arbitrary manner, without the due processes established in Article 163 and the Validation Act. Referring to the case of Re Eusi Kwayana’s Application that was cited, the CCJ noted that the Court of Appeal had declined jurisdiction in an application challenging the validity of an election where it was alleged that there was a defect in the oath of office taken by the President. The CCJ found that the case illustrated the strict and narrow interpretation by the courts of Article 177(4).
The CCJ decision
In view of the foregoing, the CCJ ruled as follows:
(a) The provisions of Article 177(4) were not triggered by Ms. David’s application to the Court of Appeal, and the finality clause was inoperable;
(b) The CCJ had jurisdiction to hear and determine the application by Messrs. Ali and Jagdeo to set aside the decision of the Court of Appeal;
(c) The Court of Appeal decision was made without jurisdiction. It was therefore not final and is of no effect;
(d) The CCJ is entitled and required to declare it invalid and, likewise, the report issued by the CEO which was based on it. It follows that the appeal of Messrs. Ali and Jagdeo succeeds.
In his concluding remarks, Justice Saunders stated that as Guyana’s final court, the CCJ cannot pretend to be oblivious of events that have transpired since December 2018. He asserted that:
It has been four months since the elections were held and the country has been without a Parliament for well over a year. No one in Guyana would regard this to be a satisfactory state of affairs. We express the fervent hope that there would quickly be a peaceable restoration of normalcy.
Latest developments
Last Thursday, GECOM Chair wrote to the CEO requesting him to submit a report in accordance with Article 177(2)(b) of the Constitution and Section 96 of the ROPA the following day, ‘using the valid votes counted in the National Recount as per Certificates of Recount generated therefrom’. She reminded the CEO that the law requires him to be subject to the direction and control of the Elections Commission. In response, the CEO stated that he needed a number of clarifications and was given until Saturday to make his submission. This he did, but instead of using the recount results, the CEO submitted his report that included the contaminated results of Region 4 in an earlier report he had presented. That report was held in abeyance pending the outcome of the recount exercise.
The meeting of the Commission to review the CEO’s report was aborted because of a lack of a quorum, as the Government-nominated commissioners did not turn up. The Commission is expected to meet again today; and those present, including the Chair and three commissioners, would constitute the quorum. The nation anxiously awaits the outcome of the meeting.
