The Granger administration and its allies continue to defy the will of the Guyanese people by refusing to accept the vote count. The count has been certified as valid by international observers OAS and CARICOM, Guyana’s and the Caribbean’s highest courts. The United States joins the rest of the region [in] refusing to go along with this farce. We will continue to act until the Granger administration accepts the will of Guyanese voters.
Assistant Secretary for Western Hemisphere Affairs Michael Kozak
Those who want to subvert, anyone who wants to subvert the broad daylight free and fair elections would have to face the disapproval [of] the people of the Caribbean Community and the leaders of the Caribbean Community. CARICOM has already decided that. I am not speaking out of turn. CARICOM has made these declarations.
Chairman of CARICOM Ralph Gonsalves
Last Tuesday, former Malaysian Prime Minister, Najib Razak, was found guilty for abuse of power, money laundering and breach of trust relating to the diversion into his personal bank accounts of the equivalent of US$9.8 million of state fund 1Malaysia Development Berhad (1MDB) – a fund he had set up to promote economic development. Najib was fined the equivalent of US$49 million and sentenced to 12 years in jail. Prosecutors alleged that a total of $4.5 billion was stolen from the fund that involved, among others, the purchase of art, a superyacht and funding of the “Wolf of Wall Street” movie. They also alleged that $27 million was used to buy a pink diamond necklace for Najib’s wife and to fund Najib’s election campaigns.
Today marks five months since citizens went to the polls to elect a government of their choice to manage the affairs of the State for the next five years. However, the results are yet to be declared (Editor’s note: the results were finally declared yesterday), despite the recount of the votes which the CARICOM Scrutinising Team certified as credible and representing the will of the people, and endorsed by the international community, including the United States, Canada, the UK, the EU, the OAS and the Commonwealth Secretariat. Although the courts have pronounced on the validity of the recount exercise, judicial intervention continued to be sought.
Appeal against the Chief Justice ruling
On 20 July 2020, the Chief Justice handed down her ruling on an application by Misenga Jones seeking to prevent the Elections Commission from declaring the results of the elections based on the recount. The Chief Justice had dismissed the application because most of the issues were considered res judicata and could not therefore be re-litigated. Not satisfied with the ruling, Ms. Jones filed an appeal with the Court of Appeal on 22 July 2020, listing 20 grounds of appeal, including that the Chief Justice:
(a) Erred when she ruled that the constitutionality of Section 22 of the Elections Laws (Amendment) Act was res judicata, and by extension the validity of Order 60 of 2020 that allowed for the recount of the votes cast;
(b) Misconstrued paragraphs 106 and 107 of the majority judgment in of the Court of Appeal in Ulita Moore v GECOM when she failed to consider that GECOM Chair and/or the commissioners had acted outside their constitutional and/or statutory power;
(c) Erred when she held the declarations of the Returning Officers (ROs) made pursuant to Section 84 of the Representation of the People Act (ROPA) had been overtaken by events, were no longer useful, and could not be resurrected; and
(d) Failed to take into account that the ROs did not participate in the recount process as well as evidence that GECOM Chair and/or the commissioners, officers and agents of the Commission had changed the validity of ballots or votes during the purported recount.
In a cross-appeal, the Attorney General contended that Section 18 of Election (Amendment) Act is in conflict, or in tension, with Article 177 of the Constitution. As such, it breaches the separation of powers doctrine and is therefore unconstitutional.
Court of Appeal ruling
Last Thursday, the Court of Appeal comprising Justices Dawn Gregory, Priya Sewnarine- Beharry and Rishi Persaud, unanimously disallowed the appeal against the ruling of Chief Justice that the recount votes be used to declare the results of the elections. The cross-appeal by the Attorney General was also dismissed.
In separate rulings, the judges affirmed the Chief Justice’s ruling that the Chief Election Officer (CEO) must submit his report under Section 96 of the ROPA based on the recount of the votes and that he is subject to the direction and control of the Commission. As such, he must act in accordance with the Commission’s instructions. They also agreed that the CEO does not have a constitutional mandate under Article 177 of the Constitution. Rather it is the Chairperson and GECOM that have such a mandate. The judges further stated 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 ROPA.
The CEO had consistently refused to submit a report on the polls using the results of the recount. In his most recent report, the CEO used the 13 March declarations by the ROs, including the tampered declaration of Region 4 which the diplomatic community and the accredited observer groups considered to be lacking in transparency and credibility. The intervention of the then CARICOM Chair, Mia Mottley, saw an agreement between the President and the Opposition Leader for a recount of all the votes cast to take place in the presence of the CARICOM Scrutinising Team.
The Court of Appeal emphasized that the various challenges to the validity of Order 60 can only be addressed via an election petition after a declaration is made and the elections process comes to an end, not before. It considered that these challenges amounted to an abuse of the court’s process.
Individual rulings
In her ruling, Justice Sewnarine-Beharry stated that the CEO must submit his report under Section 96 of the ROPA based on the recount results and that he is under the direction and control of the Elections Commission. She added that, given the CCJ’s endorsement of the validity of Order 60 of 2020, the court is estopped from enquiring into any matter which has the effect of vitiating an election, or from enquiring into whether GECOM or its members has validly performed their functions, except by way of an elections petition. She was also of the view that the High Court did not have jurisdiction to inquire into the validity of Section 22 of the Election Laws (Amendment) Act. The Chief Justice had ruled that the principles of res judicata apply to this issue.
Justice Sewnarine-Beharry considered the appeal ‘frivolous and vexatious’ and an abuse of the court process. In this regard, she referred to the statement of former Chancellor of the Judiciary, Justice Desiree Bernard: ‘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’. She asserted that ‘[i]f the law is on your side, regardless of the identity of the litigant, you will win. If the law and judicial precedent is against you, you will lose’. Justice Sewnarine-Beharry concluded that justice must never be tied to political considerations and affiliations, and that the independence of the judiciary must at all times be maintained.
In his ruling, Justice Persaud referred to his previous dissenting judgment where he held that the court had no jurisdiction to enquire into the functions of GECOM as Section 140 of the ROPA offers protection in relation to the Commission’s management of the election process. He stated that any disagreement has to be dealt with in an election petition. Justice Persaud indicated his agreement with the Chief Justice’s ruling that judicial review was necessary to address the impasse between the CEO and GECOM Chair in order to complete the elections process; and that the CEO needed to act on GECOM’s direction to produce his report in accordance with the recount.
Justice Gregory upheld the validity of the recount and stated that there was no basis for questioning the constitutionality of the recount Order. She noted that the Caribbean Court of Justice was correct in its ruling that the Order was valid and could not be challenged unless by way of an elections petition. Justice Gregory also agreed that the responsibility of the CEO is mainly to present the election results and that it was not difficult for him to tabulate the recount results and present them to the Commission. She stated that the High Court has supervisory powers to ensure the election process is protected and that many of the reliefs sought by the appellant were matters that properly should be dealt with via an election petition. Justice Gregory-Barnes was, however, of the view that the High Court had jurisdiction to enquire into the validity of Section 22.
Latest developments
Last Wednesday, three individuals filed private criminal charges of misconduct against the GECOM Chair, alleging that she: (i) acted recklessly and unlawfully when she refused to accept the CEO’s report on the results of the elections; (ii) disregarded the advice of the Chief Parliamentary Counsel that the recount of the votes cast was unlawful; and (iii) breached the recount Order No. 60 of 2020 that was gazetted.
The GECOM Chair is the holder of a constitutional office, and in the exercise of her duties, she is not subject to the direction or control of any other person or authority. If, however, there is an allegation of inability to discharge the functions of her office or of misbehaviour, the President, acting on the advice of the Judicial Service Commission (JSC), is required to establish a tribunal comprising at least three judges selected by the JSC to hear the matter. If the Chair is found guilty, she is removed from office. These provisions are contained in Article 226 of the Constitution.
We end today’s article with the words of the late U.S. Congressman from Georgia, John Lewis:
Democracy is not a state. It is an act, and each generation must do its part to help build what we called the Beloved Community, a nation and world society at peace with itself. Ordinary people with extraordinary vision can redeem the soul of America by getting in what I call good trouble, necessary trouble. Voting and participating in the democratic process are key. The vote is the most powerful nonviolent change agent you have in a democratic society. You must use it because it is not guaranteed. You can lose it.