Citing the recent decisions of the Appeal Court and the Caribbean Court of Justice (CCJ), acting Chief Justice Roxane George-Wiltshire yesterday upheld the validity of the order issued by the Guyana Elections Commission (GECOM) for the national recount from the March 2 polls and said that only those results can be used to make a final declaration.
In dismissing a challenge brought by Misenga Jones to the decision by the Guyana Elections Commission (GECOM) Chairperson Claudette Singh to use the national recount to finalise the results, the Chief Justice specifically underscored that all the grounds of the application had already been litigated during previous challenges from the elections and that their re-litigation was a waste of the court’s time.
However, GECOM is unlikely to finalise the results soon as Jones’ attorneys have already signaled their intention to appeal, while noting that they will go all the way to the CCJ again if need be.
Stemming from a request made by the woman’s legal team, attorney Kim Kyte-Thomas, who represents GECOM’s Chairperson, has said that her client would be prepared to stay her hands from acting on the judgment, provided that the intended appeal is filed no later than the end of today.
This request did not sit well with attorneys for some of the other respondents in the case, who were quick to point out that in the absence of an appeal before the court, GECOM, and the Chairperson in particular, should not delay any longer on declaring a winner.
Kyte-Thomas did acknowledge that the nation has been awaiting the conclusion of the elections since March and that an end is anticipated, but noted in the same vein that her client has always acted with restraint once challenges were mounted before the courts. While she agreed that there was no pending matter hindering her client from going ahead, however, she said that her client would be willing to maintain the status quo throughout today only.
Attorney Roysdale Forde, one of Jones’ lawyers, has said that her appeal will be filed by the end of today.
The nub of Jones’ challenge was that Chairperson of GECOM could only make a declaration from the report submitted by Chief Election Officer (CEO) Keith Lowenfield based on the reports he received from the Returning Officers (ROs) of each of the 10 electoral districts as opposed to the results of the recount.
The Chief Justice, however, dispelled this view as she noted that based on the interpretation of the CCJ’s decision regarding Order 60, by which the recount was facilitated, the declarations of the Returning Officers (ROs) had been overtaken by events and could not be “resurrected.”
On this point, she said that GECOM, “in its wisdom,” considered that there were difficulties that had to be addressed in order to produce what is termed in Order 60 as a credible count.
Quoting from the judgment of the Guyana Court of Appeal in the Ulita Moore case—a previous challenge mounted in these elections by an APNU+AFC candidate—Justice George-Wiltshire noted where that court said that it was “within GECOM’s functions to resolve those controversies as part of its responsibilities to deliver results of the elections.”
Quoting also from the ruling handed down by the CCJ almost two weeks ago in another case connected with these very elections, the judge reminded that Order 60 “was to provide an open, transparent, and accountable recount of all the votes cast in those elections.”
She said that given the Court of Appeal and CCJ decisions, which both bind her, the recount cannot be considered to be invalidated as is the view of the applicant. “At least not at this point in time,” the judge said.
Jones had argued in her application that Section 22 of the Elections Laws (Amendment) Act, pursuant to which GECOM issued the recount order, was unconstitutional. However, the Chief Justice underscored that this subject matter had already engaged the court’s attention and emphatically decided upon in the Moore case, where the Court of Appeal “clearly” held that the legality of Section 22 was “a matter to be frontally examined by the court at a full hearing,” that being in an elections petition.
Against this background the judge said that the Court of Appeal having pronounced that a challenge to the constitutionality of Section 22 would be for an election petition, the principles of res judicata (a thing, matter, or determination that is adjudged or final) apply. Since the issue had been raised and importantly dealt with by the Court, she said it could not be canvassed again, while adding that she is bound to follow the decision of the court above her. “I can discern no distinguishing feature that would permit me to depart from this judgment; nor has any evidence been disclosed on the affidavits by and/or on behalf of the applicant such as to permit me to do so,” the judge noted.
‘Hopelessly flawed’
The other issue with which the Chief Justice had to deal was whether Order 60, and by extension the recount results obtained therefrom, were valid such as to permit using them to make a declaration of the March 2nd election results.
Jones’ position had been that only votes counted by the ROs in accordance with the RPA were to be used and not those of the recount. According to her, this was the effect of the CCJ ruling which by extension invalidated Order 60.
The Chief Justice, however, concluded that a holistic review of the CCJ judgment supports the contention for the Chairperson that this issue had already been dealt with and thus, the interpretation of the CCJ decision by the applicant, the CEO and the Attorney General (AG) Basil Williams was “hopelessly flawed.”
“The CCJ judgment lends to the ineluctable conclusion that the recount votes are ex facie valid. Hence the view expressed that any irregularities would have to be addressed via an election petition,” the judge noted.
Justice George-Wiltshire noted too where the apex court had said that Order 60 related only to the March 2nd elections and that importantly the court went on to highlight that “it was specifically introduced to cater for the various disputes and contentions that arose after polling day. The intention was to provide an open, transparent, and accountable recount of all the votes cast in those elections. The purpose was to assuage the contestations among the various parties, determine ‘a final credible count,’ and remove certain difficulties or fill certain gaps in connection with the application of the provisions of the Representation of the People Act.”
The Chief Justice said that the CCJ clearly considered the allegations made by Joseph Harmon, an election agent for the incumbent APNU+AFC as regards irregularities, voter impersonation and fraud and noted the concerns expressed by the CEO, commenting that he “took it upon himself” to present revised totals.
The judge said she considered that this prompted the CCJ to conclude that “the exclusive jurisdiction of the High Court, through Article 163, to determine, among other matters, any question in relation to whether an election has been lawfully conducted or the result affected by any unlawful act or omission was naturally unaffected by Order 60…”
“The jurisdiction conferred by Article 163 is capable of addressing the allegations of irregularities complained of by Mr. Harmon and alluded to by the CEO. The Chairperson of GECOM was therefore perfectly entitled and right to take the position that these allegations, if pursued, should be addressed by an election petition filed in the High Court as contemplated by Article 163…”
The Chief Justice then surmised that far from nullifying Order 60 and the recount process, the CCJ explicitly endorsed it and that the apex court also sought to explain that as subsidiary legislation, Order 60 could not be used to interpret the Constitution as the Court of Appeal had ruled and that where there was tension or possible conflict between the subsidiary legislation and the Constitution, the latter would inform an interpretation of the former and not vice versa. Given the apex court’s ruling on this issue by which she is bound, the Chief Justice said that she could not therefore rule that Order 60 is invalid.
Not a lone ranger
Meanwhile, the judge did not agree with arguments advanced on behalf of the applicant that the CEO has a constitutional mandate under Article 177. Instead, she said it is the Chairperson and GECOM that have the constitutional mandate. She found that while the CEO may be expected to act independently, he cannot be a “lone ranger.” “The CEO is a functionary of GECOM pursuant to Article 161(A) and section 2 and 7 of the Representation of the People Act (RPA),” Justice George-Wiltshire said. She added that Section 18 of the RPA, which is repeated in Order 60, merely confirms this “and the obvious for the avoidance of doubt—that the CEO cannot act on his own. She noted that the CCJ had also made such a pronouncement as well.
The judge noted that contrary to Jones’ position, Section 18 is not unconstitutional, and is not in conflict or in tension with Article 177.
The Chief Justice noted where the CCJ also stated that any allegations as alluded to by the CEO would have to be addressed by way of an election petition.
She said that if it is the considered opinion of the CEO that in the face of Order 60 he can produce a report based on what would have been submitted by the ROs, “then one would expect that he must be guided accordingly by GECOM.”
The judge said this was disclosed by the evidence where the Chairperson sought via letters transmitted to the CEO instructing him to prepare his report from the recount results and not what would have been submitted by the ROs before the recount. “Thus, as determined by the CCJ, unless overturned by a court in an election petition, the only data that could be used for the declaration of the results of the elections would have to be the recount results or data,” the Chief Justice said.
For these reasons, she said the 10 declarations could not be “resurrected at this point in time,” and that in this regard “there can no longer be an impasse between the Chairperson and the CEO.”
Jurisdiction
The only issue on which Jones’ case succeeded was that of the High Court’s jurisdiction to hear the application.
Citing a case she had previously decided connected with these very elections by which she noted she was bound, Justice George-Wiltshire said that the court has jurisdiction to hear an application regarding whether a person exercising authority has complied with her/his statutory duties.
Citing other case law authorities, she said it had been laid down that the court can exercise a supervisory jurisdiction in elections cases outside a challenge to the validity of the elections by way of election petition.
The judge said that she was cognizant of the restrictions imposed on the court by Section 140 of the RPA, and by Article 163 that would require an approach to the court by way of election petition.
However, in the peculiar context of the case, she said that where there is an impasse regarding the decision-making of GECOM to complete the elections process and it is necessary to advance this process which is still in progress, judicial review is necessary. She said it was in this context that there can be judicial review of their decisions.
The judge said in that context there was a distinction to be drawn as regards enquiring into the functions of the Chairperson and GECOM, which are restricted by Section 140 of the RPA, and interpreting the constitutionality of Section 22 and Order 60, as well as Article 177, to determine if they are acting lawfully.
She said that on this narrow basis, there is room for an enquiry into the legal framework that guides the carrying out of their functions to complete the elections process. If the legal framework is found to be unconstitutional and therefore void, then their functions and actions would perforce be affected. On those grounds she said that the court did have the jurisdiction to hear the matter.
Dismissing all 28 claims for relief sought by Jones, Justice George-Wiltshire said that she had been guided by the decisions of the Court of Appeal and the CCJ, which had both dealt with the issues raised by the applicant.
On this point the judge explained that res judicata is a legal principle that speaks to ensuring finality in litigation and applies where a matter has been adjudicated on by a competent court so that it cannot be re-litigated.
She said that myriad persons cannot be permitted to engage the court with multiple applications regarding the same issue which has been decided, and shield behind the claim that they were not a party to the previous proceedings. To so permit, she said, would be to waste precious judicial time and resources. “In short order – this cannot be allowed.”
On this point, the Chief Justice said that the reliefs sought by Jones were all based on issues already decided by the courts and resultantly dismissed her application.
On the issue of costs, which the parties will communicate to the court at a later date, the judge noted that she had been lenient with such awards, underscoring the national interest nature of the matters which she said she considers important for the development of our jurisprudence, more especially constitutional jurisprudence.
Finding, however, that the issues had been decided by superior courts, the issue of costs would be addressed differently in that submissions on this are to be filed and served by all parties by email on or before July 24th for issuance of a costs order thereafter.
Forde indicated that given the constitutional importance of the matter, his client would be appealing.
These sentiments were echoed by the AG, Basil Williams.
Attorneys Anil Nandlall and Devindra Kissoon—two of the battery of attorneys who represent the PPP/C—objected to the Chairperson restraining herself from moving ahead with declarations since no appeal had actually been before the court yet.
Kyte-Thomas, however, made it clear that her client’s restraint would only be extended to the end of today.
Key findings in Chief Justice’s ruling:
The CCJ explicitly endorsed the recount order and process.
As held by the CCJ, unless overturned by a court in an election petition, the only data that could be used for the declaration of the results of the elections would have to be the recount results or data.
The declarations by Returning Officers for the 10 electoral districts cannot be used.
The CEO cannot be a “lone ranger” and is by law subject to the direction and control of the Commission.
Read the full ruling at: https://www.stabroeknews.com/2020/07/20/news/guyana/acting-chief-justices-full-ruling-in-misenga-jones-v-gecom-case/
