The Guyana Elections Commission (GECOM) will have to fire Keith Lowenfield and appoint someone to perform the duties of Chief Election Officer (CEO) if the Guyana Court of Appeal upholds the recount result tomorrow.
This is according to opposition-nominated Commissioner Bibi Shadick, who told Stabroek News yesterday that any other action could see a declaration challenged by the incumbent.
“We have to follow the law which says a report has to be prepared and submitted to the Commission by the CEO [otherwise] that will be grounds for them to go to Court,” she explained stressing that this person should not be “acting” but appointed to perform the duties even in the short term while systems are put in place for a permanent replacement.
Shadick noted that while Lowenfield has submitted to the Commission the raw numbers of votes cast for each list of candidates according to the national recount he has not “worked out according to law how many seats will be allocated to the parties in the parliament and in the RDCs [Regional Democratic Councils].
Section 99 of the Representation of the People Act specifically states that the report should include the number of votes cast for each list of candidates; the number of rejected ballot papers and the number of seats allocated to each list of candidates.
Attorney for the People’s Progressive Party/Civic (PPP/C) Anil Nandlall has suggested that since the Commission already has the number of votes cast for each list and number of rejected ballot papers it can calculate the number of seats.
“In the face of the fact that you have a recalcitrant CEO…in the interest of expediency GECOM has the power- since he has already submitted valid votes- to prepare that report and make the declaration,” he said.
Nandlall stressed that the primary objective of any elections is for the people’s ballots to be counted and the government elected via this process installed.
“Everything else is subservient to that golden rule,” he said, explaining that Courts across the world have so interpreted the law.
The attorney’s explanation of the Commission’s power in this case relies heavily on Article 162 (1) (b) of the Constitution which states that the Elections Commission subject to the provisions of the Constitution shall issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the legal provisions on the part of persons exercising powers or performing duties connected with or relating to elections.
However Article 177 (2) of the same constitution and several other pieces of legislation including Section 96 of RPA suggest that only the CEO can complete this report. It specifically states that the Chair shall act “only in accordance with the advice of the Chief Election Officer.”
This provision is why Shadick suggests caution.
“If the Commission goes ahead and does its own calculation and declares on the basis of that, they will go to Court and say constitutionally and legally we not supposed to do that and that will be another thing that I don’t think the Chair wants to happen,” she explained noting that Chairperson Justice (ret’d) Claudette Singh appears unwilling to do anything that is not strictly according to law.
“The CEO has demonstrated clearly that he is insubordinate and therefore there is firm grounds for him to be sent home. Not suspended. Not interdicted. Dismissed. He has done enough for dismissal,” she stressed.
The Guyana Court of Appeal is to hand down its decision tomorrow in Misenga Jones V GECOM et al.
Jones is challenging the validity of Order 60, which facilitated the recount.
