The Chair of the Elections Commission had written to the Chief Election Officer (CEO) requesting him to submit a report ‘using the valid votes counted in the National Recount as per Certificates of Recount generated therefrom’. In response, the CEO stated that he needed a number of clarifications but the Chair stood her ground because her letter was clear as to what the CEO must do. He was then was given one day’s extension to make his submission. The CEO complied, but instead his submission included the contaminated results of Region 4 in a report he had presented to the Commission on 13 March. That report was held in abeyance pending the outcome of the recount exercise.
The Commission met last Monday and decided to give the CEO until the following day (Tuesday) to present a report using the results of the recount exercise, failing which his deputy will be asked to do so. It also agreed to set aside the CEO’s report of 13 March. However, when the Commission convened on Tuesday, it found that the CEO again did not submit the requested report. Added to this, the Commission learnt of the filing of a court action to direct it to use the CEO’s 13 March contaminated report, and not the recount results, to determine the elections outcome. As a result, the meeting was aborted until the conclusion of the court matter. The Government-nominated commissioners and the CEO reportedly walked out of the meeting in protest against the Commission’s decision to set aside the CEO’s report of 13 March.
Court action
One Misenga Jones, an APNU+AFC supporter, sought the intervention of the High Court requesting it to make 28 declarations in relation to the 2 March elections. In essence, she is asking the Court to block the Commission from using the results of the recount to declare the winner of the elections, and to compel it to use the ten district declarations contained in the CEO’s report of 13 March instead. According to the applicant’s attorney, the declarations were ‘never invalidated or set aside by the courts and remain valid, and there is no lawful impediment to make a declaration’.
The court proceedings commenced last Wednesday with a case management meeting. The applicant and respondents, including all the political parties contesting the elections (except APNU+AFC), which joined in the action with the approval of the court, were requested to make written submissions within strict deadlines before last Friday. The Chief Justice identified the following issues that needed to be addressed:
(a) Whether the High Court has jurisdiction to hear the matter;
(b) Whether the gazetted recount Order (Order No. 60 of 2020) is valid to permit a declaration of the elections results based on the recount;
(c) Whether Section 22 of the Election Laws (Amendment) Act of 2000 is constitutional or unconstitutional. (This section vests with the Commission the authority to make an Order to remove any difficulty that appears to it expedient or necessary in connection with the application of the Act, Representation of People Act, National Registration Act or any relevant subsidiary legislation); and
(d) Whether the 10 district declarations should be set aside and whether the issues have been already addressed by the Court of Appeal and the CCJ.
Last Friday, the Chief Justice heard oral arguments from all the parties involved. The applicant’s lawyers contended that the High Court has jurisdiction to hear the matter and that Order No. 60 of 2020 allowing for the recount conflicts with Article 177(2) (b) of the Constitution. That article requires GECOM Chair to make a declaration of the results of the election ‘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’. That advice, they contend, has already been tendered in the CEO’s latest report.
The respondents’ lawyers argued that the High Court does not have jurisdiction to hear the matter as the issues raised by applicant have to be dealt with via an election petition in accordance with Article 163 of the Constitution. They also referred to Section 18 of the Election Laws (Amendment) Act of 2000 which specifically provides for the CEO to be subject to the direction and control of the Commission, notwithstanding anything in any written law. (Emphasis added.) The CEO is therefore obliged to prepare his report using the recount results, as directed by the Commission. They contended that the CEO cannot put himself above the Commission, the laws of Guyana and the Constitution; ‘it would be unthinkable that one man, an employee of GECOM, could be vested with such absolute and unchecked power’; and the Constitution and electoral laws never contemplated that the CEO would be ‘a power unto his own and dictate to GECOM’.
The respondents’ lawyers further argued that the issue has already been dealt with and pronounced on by the Court of Appeal and the CCJ and therefore the application, which ‘tramples on the principle of Res Judicata’, is an abuse of court’s process and should be thrown out. They reminded the court of the statement made by the President of the CCJ Justice Saunders that 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’.
The Chief Justice is expected to give her ruling today.
International community’s reaction
Clearly frustrated at the extraordinary and unprecedented delay in announcing the results of the 2 March 2020 elections, the U.S. Secretary of State, Mike Pompeo, last Wednesday called on the Granger-led Administration to recognise the results of the recount and relinquish office to allow the new government to be formed. He also announced visa restrictions on those who undermined democracy as well as those who are complicit in doing so:
Today, I am announcing visa restrictions on the individuals responsible for or complicit in undermining democracy in Guyana. Immediate family members and such persons may also be subject to restrictions. The Granger government must respect the results of democratic elections and step aside.
Mr. Pompeo made it clear that the U.S. action is not about interference of Guyana. Rather, it is about sending a clear message of the consequences of subverting democracy and the rule of law, and the danger such subversion poses to the United States and its hemispheric partners. He reiterated that the United States has no preference as to which party wins the elections, as long as the results are derived through ‘a free and fair electoral process that is credible’. The Secretary of State further stated that there are forces that have repeatedly refused to accept the will of the people via the ballot box. This, he said, poses a danger for Guyana’s citizens and the hemisphere as a whole. He expressed the hope that Guyana’s leaders understand what is at stake if they continue down this path.
Canada and the UK have also indicated that they will take similar measures. Global Affairs Canada stated that Canada would continue to work with its partners in the international community, using all tools at its disposal to demand ‘a swift and transparent conclusion to the election process and hold accountable those who prevent it’. The UK, for its part, urged the Elections Commission to make a declaration on the basis of the CARICOM’s scrutinised recount, adding that Guyana deserves an election result that reflects the will of its people.
The Chairman of CARICOM, Dr. Ralph Gonsalves, noted that in a normal democracy what should a straightforward matter of counting votes, ‘has become the equivalent of a long-running soap opera, pregnant with real danger for the people of Guyana and the Caribbean Community’. In this regard, he commented as follows:
A rogue clique within Guyana cannot be allowed to disrespect or disregard, with impunity, the clear, unambiguous ruling of the Caribbean Court of Justice (CCJ). The time for decisive action is shortly upon us….The entire world realizes that a small group of persons, in and out of Guyana, are seeking to hijack, in plain sight, the elections, and thus the country.
That magnificent country, Guyana, and its industrious people of the highest quality, are dear to us in CARICOM. We are in solidarity with the people of Guyana; we defend on an ongoing basis the territorial integrity of Guyana. Today, CARICOM defends democracy in Guyana; we defend the voters of Guyana; we are on the side of the angels in the stand-off between those who reject the people’s verdict and those who insist, properly, on its observance, recognition, formal declaration, and implementation.
Dr. Gonsalves called for an immediate end to ‘this charade’ through a just declaration by GECOM in accordance with the mandate delivered by the electorate, the laws of Guyana and the CCJ’s ruling.
The Brazilian government issued a statement in which it called on the Guyanese authorities to use the recount figures to make the declaration. It also endorsed the conclusions of CARICOM, OAS, European Union, United States, UK and Canada regarding the conduct of the elections and the results based on the recount. Additionally, Brazil considered that ‘delaying the conclusion of the electoral process poses a serious threat to stability in Guyana and a departure from the democratic commitments that the country must observe in the regional and hemispheric context’. It also called on Guyana, as an Associated State of MERCOSUR, to honour its commitment to adhere to the highest democratic principles.
Meanwhile, the OAS Permanent Council will be meeting tomorrow to discuss the Guyana situation while a similar meeting will be held by CARICOM after the court hearing is concluded.
There have been criticisms, mainly from supporters of the APNU+AFC, of the concerns expressed by the international community in relation to what transpired since 2 March as well as the threat of sanctions, which they view as interference in the internal affairs of the country. When the Donald Ramotar-led Administration prorogued Parliament in 2014, it was under severe pressure from the international community that the President was forced to end the prorogation. It was President Granger, then Opposition Leader, who had called for sanctions to be imposed to change the Government’s ‘undemocratic behaviour’, contending that such sanctions could have a serious effect on the economy. He had also stated that the country needed to attract foreign direct investment as well as access to international donor funding, among others, and asserted that:
But when it is perceived widely that Guyana is a pariah state, Guyana is an outcast, there will be less willingness on the part of donor countries to pump money into what is becoming a failed state, to pump money into a country which does not practise democratic behaviour.
