With the certifying of the outcome of the March 2nd polls still hanging in the balance, the stage is set when GECOM meets this morning for the firing of Chief Election Officer (CEO) Keith Lowenfield who has thrice defied instructions by the Chairperson, Justice Retired Claudette Singh to present the results of the recount
A meeting is scheduled for 10 am at the Commission’s High and Cowan streets, Kingston Headquarters.
PPP/C Executive and Attorney Anil Nandlall says that the law is on Singh’s side as it pertains to disciplining and even termination of the CEO and he added that the Chairperson can also move to immediately appoint a replacement, give a directive for the recount results to be presented via a report and move to have a swift declaration.
Lowenfield, he said, could also face similar court action as embattled Region 4 Returning Officer Clairmont Mingo for using the fraudulent results he presented to GECOM on Saturday.
“For him [Lowenfield], therefore, to defy the directions of the Commission, a third time, and to use Mingo’s fraudulent figures makes him guilty of fraud, constitutes a gross act of insubordination and a vulgar dereliction of his statutory duty. All of this cumulate to create incontrovertible bases and grounds for his instantaneous dismissal. He has simply violated the public confidence and trust placed in him as Chief Election Officer,” Nandlall told Stabroek News yesterday.
“Any doubt that the Commission has the power to dismiss him is put to rest by the clear language of Article 161A of the Constitution,” he added, as he quoted the said Article pertaining to hiring and firing.
Article 162(1) (b) was also referred to as Nandlall said that it provides that GECOM: “shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.”
“This article confers upon GECOM very broad powers. Certainly, what Lowenfield has done is not impartial, nor fair, nor in compliance with the Constitution and any Act of Parliament. In the result, the Commission is empowered to take such actions as appear to it necessary to restore impartiality, fairness and compliance with the law,” he said.
‘Numbers game’
However, while government-nominated Commissioner Vincent Alexander believes that the law gives the Commission the authority to hire and fire as it deems appropriate, he is of the view that it must follow due process and meet the protocol set out for such an appointment. Alexander says that if this process is not followed, legal action can be triggered for violations of protocols and it would again see a lengthy delay.
“This is a numbers game; a numbers game and things can be done. You have seven people sitting down and if four decide to fire him then that is all that is needed and he can be fired,” he said.
“His deputy can replace him following normal procedures… remember this is a statutory position and if they pull anybody else it has to follow certain procedures, both in terms of how the person is recruited, appointed etcetera. This is a position that has always been advertised, applicants interviewed by the commission etcetera. But in the numbers game the appointment of a replacement can lead to legal actions and procedures,” he added.
Lowenfield’s deputy Roxanne Myers has been criticised by the opposition for what they have said were partisan actions and it is unlikely that the opposition-nominated GECOM commissioners will want her deputising for Lowenfield.
In clear defiance of the instruction by the Chairperson to utilise the recount tabulation which shows a win for the opposition PPP/C, Lowenfield on Saturday presented figures to the Commission showing a victory for the incumbent APNU+AFC.
Using already rejected fraudulent figures from a Region 4 declaration by Mingo, Lowenfield’s latest report was the sixth on the March 2 polls – all with different figures.
The report was presented to the GECOM Chairperson and distributed to the six commissioners.
A meeting was also scheduled for Saturday but had to be called off as it did not have the required quorum for a sitting since the three government-nominated commissioners were no- shows.
Security grounds
Alexander was asked yesterday about the reason for the absence and he said that the three commissioners had asked for a postponement “on security grounds”. He said that he and the two other commissioners did not believe that GECOM had adequate security present to address their concerns about threats to their lives. Questioned on if permission was granted by the Chair he replied, “I don’t know. She [Singh] knew we won’t be coming and she knew the reason why.” And when asked if the security concerns have been taken care of he said he believed so.
Asked if he will be present at this morning’s meeting, he said, “I have no reason not to turn up.”
Alexander said that when he goes into this morning’s meeting, he has no definitive idea on what will be on the agenda or what will be the decision of the Chairman on a way forward. But he hopes that “good sense will prevail” and legal procedures and guidelines will be followed.
“This is a chess game. Given the state of things, what you want to know and are asking me right now are things that I also want to know. So what you want to know I want to know,” he said.
This newspaper reached out to GECOM’s Public Relations Officer Yolanda Ward for comment on both Saturday’s postponement and the agenda for today’s meeting but numerous calls and messages to her number went unanswered.
‘Cannot countermand’
Nandlall says that under Article 162 of the Constitution, GECOM is endowed, exclusively, with a panoply of powers to perform all functions connected with or relating to the conduct of elections in Guyana and should thus exercise those immediately.
“An election begins with the issuance of a proclamation dissolving Parliament and fixing a date for the elections and ends with the declaration of the results for those elections. Article 177 of the Constitution, specifically, obliges the Commission to declare the results of those elections. This declaration is to be based upon a statutory report to be prepared by the Chief Election Officer using the total number of valid votes cast to determine the number of seats to be allocated to each political party and the Presidency based upon the number of votes received by the respective political parties. The Commission is required to direct the Chief Election Officer to prepare this Report. Under section 18 of the Election Laws (Amendment) Act and Article 161A of the Constitution, as well as, Clause 11 of the Recount Order (Order No. 60 of 2020), the Chief Election Officer, and indeed every officer of the Secretariat, is under the control, supervision and direction of the Commission,” he argued.
“So when a direction is given by the Commission, a Chief Election Officer cannot countermand or refuse to carry out such a direction. He simply has no such autonomy or freedom. He is bound by that direction. In any event, that direction to prepare that Report is expressly captured as a statutory duty of the Chief Election Officer by virtue of section 96 of the Representation of the People Act. Mr. Keith Lowenfield has been given that direction since the 16th June, 2020. Acting upon his self-proclaimed guidance in the Court of Appeal ruling in the Eslyn David case, Mr. Lowenfield prepared a Report in which he invalidated 115,000 valid votes. On appeal, the Caribbean Court of Justice set aside the Court of Appeal ruling and set aside Lowenfield’s perverse report,” he added.
He said that in the course of its judgment, the CCJ examined the Recount Order and the recount process and endorsed them both. “Without making an Order, to the effect, the Court made it clear that the recount results must be used as the basis for the declaration of the final results. The Court also clarified, emphatically, that an allegation of impropriety, including dead and migrant people voting, can only be ventilated before an Election Court moved by an Election Petition,” Nandlall stressed .
“There was nothing unclear about the judgment of the CCJ. Yet, Mr. Lowenfield when redirected to use the Recount results to prepare his Report countered with a letter for clarification,” he added.
‘Extraordinary situation’
The Chairperson, he believes, correctly refused to condescend to that request and rightfully again directed him to prepare the Report using the results generated by the recount.
And when Lowenfield then submitted another set of fraudulent results, the former Attorney General said that he should know that he too was committing the same illegal act as the District 4 Returning Officer.
“Again, Lowenfield defied those directions and boldly submitted a Report which included, Clairmont Mingo’s fraudulent declarations in relation to District Number 4, gifting APNU/AFC a fraudulent victory by one seat. Clearly, Mingo’s declaration cannot be used as it was overtaken by the National Recount,” he said.
“…The Recount was specifically undertaken because Mingo’s declaration was accepted by all as fraudulent. Keith Lowenfield himself was the main supervisor of the recount. He personally tabulated the Certificates of Recount of the 10 districts and presented the aggregate to the Commission,” he added.
It is for these actions that Nandlall said that the Commission must today show that there is a penalty for insubordination and the derailing of the efficient functioning of the Secretariat of the Commission as the law says it “shall have the power to remove and to exercise disciplinary control over such staff.”
He bemoaned the months since the elections without a declaration of the results.
“Certainly, we are not dealing with an ordinary situation. In fact, we are dealing with an extraordinary situation. Extraordinary situations require extraordinary responses. No doubt the Commission has the power to hire and fire a Chief Election Officer,” he said.
“The only logical and legal step left for the Commission is to fire Lowenfield and immediately hire someone as the Chief Election Officer and direct that someone to prepare the requisite report so that the election results can be declared. All of this can take place in a few hours. Article 162 (1) (b) was tailor-made for a situation such as this. Having regard to the antecedents since March 2nd, GECOM has all the powers, under this Article, to do that which is necessary to bring this travesty to an end,” he added.
