In a unanimous judgment, the Guyana Court of Appeal has dismissed the appeal filed by Misenga Jones, who was seeking to have the Guyana Elections Commission (GECOM) prevented from using the results of the national recount to declare a winner of the March 2nd elections.
An appeal to the Carib-bean Court of Justice (CCJ) may, however, be likely as Jones’ attorneys were granted a one-day stay of the judgment, said to be for a review and instructions from their client on the way forward, despite objections over what exactly was being stayed.
Justices of Appeal Dawn Gregory and Rishi Persaud and High Court Judge Priya Sewnarine-Beharry yesterday all dismissed Jones’ appeal as well as the cross appeal identical to hers filed by Attorney General Basil Williams.
The appellate court affirmed last week Monday’s ruling of acting Chief Justice Roxane George-Wiltshire that it is the results from the recount and nothing else which must be used to make an official declaration
The court also upheld the chief justice’s decision that Chief Election Officer (CEO) Keith Lowenfield is under the direction and control of the Commission and must, therefore, act in accordance with its instructions.
Furthermore, the appellate court agreed with the chief justice’s ruling that the CEO does not have a constitutional mandate under Article 177 of the Constitution. The chief judge had said that instead, it is the Chairperson and GECOM that have the constitutional mandate.
She found, and the Court of Appeal affirmed yesterday, that while the CEO may be expected to act independently, he is a functionary of GECOM pursuant to Article 161(A) of the Constitution and sections 2 and 7 of the Representation of the People Act (RoPA).
Jones’ position has been that the Commission and its Chairperson could only make a declaration from the report submitted by Lowenfield based on declarations he received from the Returning Officers (ROs) of each of the 10 electoral districts as opposed to the results of the recount.
As Justice George-Wiltshire had ruled, however, the Court of Appeal found yesterday that the recount exercise had overtaken those declarations, which can no longer be used to declare a winner of the polls.
Referencing a ruling from a previous challenge to these very elections which was handed down by the CCJ—Guyana’s court of last resort – the chief justice had pointed out that the apex court had itself said that it is only the recount results which could now be used to make a declaration. The Guyana Court of Appeal so ruled as well.
While both the incumbent APNU+AFC and the main opposition PPP/C have claimed victory at the polls, the recount showed an opposition win. APNU+AFC has, however, alleged that it also uncovered irregularities that discredit some of the votes.
Lowenfield has over the last month consistently refused to submit a report on the polls using the results of the recount. Instead he has most recently submitted a report using declarations from March 13, including a discredited declaration from Region Four RO Clairmont Mingo.
As it had also already ruled, the appellate court reiterated that all challenges to the validity of Order 60, by which the recount was facilitated, can only be addressed by an elections petition, which is filed after a declaration is made and the elections process comes to an end, and not at any time before.
The chief justice had ruled that the constitutionality of Section 22 of the Election Laws (Amendment) Act (ELA), under which the recount was carried out, could not be addressed at this stage of the electoral process as Jones sought to contend.
Jones’ argument has been that Section 22 was unconstitutional as its bringing into force of Order 60 created a new electoral regime in Guy-ana. The CCJ has, however, as was pointed out by the chief justice, declared that the Order did not create a new elections regime but through transparency, sought to assuage certain contestations of the contesting parties and arrive at a final credible count in the March 2nd elections only.
In previous litigation mounted to these elections, the appellate court had also already ruled that any challenge as to the constitutionality of Section 22 could only be pursued in an elections petition. The judges reaffirmed this position yesterday.
Given that these matters had already been adjudicated upon, the appellate court, as the chief justice had also decided, ruled that these issues were res judicata (a thing, matter, or determination that is adjudged or final) and therefore amounted to an abuse of the court’s process.
‘If the law is on your side…’
Given the CCJ’s pronouncements endorsing Order 60, which contemplated the use of results from the recount, Justice Sewnarine-Beharry in her judgment said that the court is estopped from enquiring into any matter which has the effect of vitiating an election, or, using the words of Section 140 of RoPA, enquiring into whether GECOM or its members has validly performed its functions or at all, except in an elections petition.
Dismissing the appeals, which she called “frivolous and vexatious,” Justice Sewnarine-Beharry said that it amounts to an abuse of the court’s process.
The judge, in her conclusion, said it is a notorious fact that “hostile and volatile” conditions pervade the elections season in Guyana, particularly when cases surrounding the election are dealt with by the courts.
Against this background, the judge referenced the words of former Chancellor Desiree Bernard, which she said are apt and worthy of recitation. She quoted her as saying, “It is incumbent on me to stress that at all times respect for our courts and orders emanating therefrom must be maintained whether right or wrongly made.”
Justice Sewnarine-Beharry said that judges strive to dispense justice under severe pressures and less than favourable conditions and that very often they make decisions which are not always popular. She described it as one of the “occupational hazards” with which they learn to live, “knowing we have decided fairly and in accordance with the law.”
The judge went on to say, “however, we hope – and I trust I speak for all members of the judiciary – that we do not have to carry the additional burden of political pressure from any quarter. We are here to dispense justice fairly and to hold the scales evenly.”
The judge reasoned, “If the law is on your side, regardless of the identity of the litigant, you will win. If the law and judicial precedent is [are] against you, you will lose.” The judge said that justice must never be tied to political considerations and affiliations, while noting that the independence of the judiciary must be maintained at all times.
Referencing pronouncements made by President of the CCJ, Justice Adrian Saunders, Sewnarine-Beharry noted that “the law must run its course.”
On the issue of the court’s jurisdiction to enquire into the constitutionality of Section 22 of the Election Laws (Amendment) Act, the validity of Order 60 and the recount results, Justice Sewnarine-Beharry said that these are prohibited unless in an elections petition in accordance with Article 163 of the Constitution.
The judge called the majority ruling in the Ulita Moore case—one of the several previous litigation connected with these elections, “erroneous” in so far as it relates to the finding that outside of an election petition, the jurisdiction of the High Court can be exercised where the court is satisfied that GECOM has acted, or is about to act in excess of its constitutional or statutory powers.
Against this background, too, she said that the chief justice’s jurisdiction on those very issues would have been ousted as well.
Moore had applied to the High Court for judicial review by way of an application in which she contended that GECOM could not order a recount based on an Aide Memoire signed by President David Granger and Opposition Leader Bharrat Jagdeo.
‘No difficulty’
Justice Persaud recalled his previous dissenting judgment on the issue of jurisdiction, where he held that the court had no jurisdiction to enquire into the functions of GECOM. He recalled that the majority decision in that matter had been that Section 140 of RoPA was incapable of protecting GECOM from judicial review challenges if it had acted or was about to act in excess of its constitutional or legislative mandate.
Justice Persaud said, however, that Section 140 did shield GECOM from review in relation to functions which fell squarely within its responsibilities in its management of the elections process.
He said that acts or omissions in the latter regard were for the determination of an election petition.
Persaud said he agreed with chief justice’s ruling that judicial review was necessary to address the impasse between the CEO and the Chairperson in order to complete the elections process, while noting that this limited jurisdiction could not be invoked to resolve any question regarding the validity of an election itself. He said that Justice George-Wiltshire was right in her finding that the CEO needed to act on GECOM’s direction to produce his report in accordance with the recount, but disagreed with her further finding that there was a basis to interpret the constitutionality of Section 22, Order 60 and Article 177 to ascertain whether the Chairperson and GECOM were acting lawfully.
This reasoning, Justice Persaud said, did not sit well with him and runs contrary to well settled jurisprudence. The judge said that the CEO must now act on the direction of the Commission to prepare and present his report using tabulations from the recount, even as he stressed that Lowenfield has neither the power nor authority to act otherwise as he purports to do.
Justice Persaud said that the impasse which afflicted the elections process and stalled its completion has been properly and effectively resolved. He then went on to dismiss the appeal, including the cross appeal filed by the AG.
Justice Gregory, in dismissing the appeal, also stressed that Lowenfield must now prepare his report in accordance with the recount results, underscoring that the CCJ did not nullify the recount nor Order 60.
She said that under the recount, where all the data was handled in one location under the supervision of the CEO “there should be no difficulty for the report of the CEO on the tabulation to be prepared as requested by the Commission.”
She, too, said that the Commission is clothed with such constitutional powers which are shielded under Section 140 of RoPA.
Immediately following the court’s ruling, attorney Roysdale Forde, one of Jones’ battery of attorneys requested a stay, which was met with strong objections by lawyers for the PPP/C, the Chairperson and those representing the new parties which contested the elections.
Forde begged the court to be granted a three-day stay as he stated that his team wanted time to review the court’s ruling and to seek instructions from their client on the way forward.
Attorney Anil Nandlall, who represents the PPP/C, however, vehemently argued that there was “nothing to stay,” since the court had not granted any orders. He advanced that what the judgements unanimously amounted to were a dismissal of the appeal and so Forde’s request ought to have been denied.
A visibly livid attorney Kim Kyte-Thomas, who represents Chairperson retired Justice Claudette Singh, said nothing having been granted, there was therefore nothing to be stayed. “All that has happened is a dismissal of a frivolous and vexatious appeal,” Kyte-Thomas said. Noting this to be her position, she emphasised that the “work of GECOM must be completed.”
The lawyer posited that if such requests were to continue being countenanced, the elections would not be completed and she asked if elections results would be rendered until 2025.
She shared Nandlall’s view, while noting that Forde’s request is untenable.
The court by majority had initially ruled that it would not grant the stay. Justice Gregory had said that she was mindful to grant a stay for one day, but Justices Persaud and Sewnarine-Beharry were both unmoved by Forde’s request.
Attorney Maxwell Edwards, who appeared in associating with the AG, however, was able to persuade the court for a grant of the stay which was allowed for 24 hours.
In a heated exchange with Nandlall, Edwards cited case law authority, with which he said Nandlall was familiar, where the appellate court had granted a stay even though no orders had been made.
Edwards said that the purported success or merit of an intended appeal had nothing to do with the request for a stay. Like Forde, he said that the issues of the case were of grave national importance and indicated that they ought to be pursed to the very end.
The court would go on to grant the stay for one day, but Justice Sewnarine-Beharry asked that the record reflect that she was not in favour.
The court then attempted to address the issue of costs, which Nandlall and counsel for all the new parties agreed should be borne by the appellant. Nandlall suggested a “conservative” sum of $2 million, especially given what he described as the circuitous nature of the litigations mounted.
He said that while the matter can be considered one of national interest, the court’s process has been repeatedly abused.
Attorney Mayo Robertson, by whom Jones is also represented, objected to the amount requested and stated that neither the PPP/C nor the other contesting parties were respondents in the original action and were merely granted an opportunity to join.
Against this background, he said that they therefore ought not to be allowed to make any request as to what cost should be imposed.
Justice Gregory, however, granted three days for all the parties to lay over submissions to the court regarding the issue of costs.
