Before proceeding with today’s article, we wish to clarify that the views expressed in last week’s article entitled “Global Witness’s withdrawal of its report on Guyana” are those of this columnist. They do not represent the views of the group that had written to Global Witness expressing concerns relating to certain aspects of its report. The use of the word “we” in that article was in reference to our Accountability Watch column and not to the group.
On Thursday, Transparency International will release its 2020 Corruption Perceptions Index (CPI). It would be of interest to learn how Guyana has been rated and ranked from among the 180 countries surveyed. In 2019, Guyana scored 40 out of 100 and was ranked 85. Although Guyana has shown an improvement by eleven points on the CPI over the period 2015 to 2019, it remains at the bottom of the table from among the English-speaking countries in the Caribbean, as shown at Table I.
During the period between the vote of no confidence in the Government and the swearing in of the new President, we had tracked developments on a weekly basis, especially as they relate to the various judicial reviews that were sought. In today’s article, we highlight the Chief Justice’s ruling on the two petitions filed by the APNU+AFC in relation to the 2 March 2020.
Background to the filing of the election petitions
On Sunday, 2 August 2020, the GECOM Chair declared PPP/C presidential candidate, Dr. Irfaan Ali, the ninth Executive President of Guyana. The declaration was made following the recount of all the votes cast in the presence of the CARICOM Supervising Team and in accordance with Article 177(2) of the Constitution:
… if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by the Chairman of the Elections Commission acting only on the advice of the Chief Election Officer, after such advice has been tendered to the Elections Commission at a duly summoned meeting.
The GECOM Chair had instructed the Chief Election Officer (CEO) to submit his report based on the results of the recount of all the votes cast. He, however, refused to do so, contending that as the holder of a constitutional office, GECOM and/or the Chair had no authority to issue such instructions. On 30 July 2020, the Court of Appeal affirmed the Chief Justice’s ruling that the CEO must submit his report under Section 96 of the Representation of the People Act (ROPA) based on the recount of the votes and that the CEO is subject to the direction and control of the Commission. As such, he must act in accordance with the Commission’s instructions. The judges 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 following day, that is, 31 July 2020, after a final instruction by the GECOM Chair was given, the CEO decided to submit his report based on the results of the recount exercise while at the same continuing to claim that there were irregularities on polling day.
The recount results showed that the PPP/C received 233,336 votes or 50.69 percent of the total of 460,352 valid votes cast in the national elections, while the APNU+AFC garnered 217,920 or 47.34 percent. The smaller parties shared the remainder of 9,096 votes or 1.97 percent. Based on these results as well as those of the regional elections, the PPP/C and the APNU+AFC were allocated 33 seats and 31 seats respectively in the National Assembly, with the remaining one seat going to the A New United Guyana Party (ANUG) and the Liberty and Justice Party (LJP) and The New Movement Party (TNM) in a shared and rotating arrangement based on a joinder agreement.
The Caribbean Court of Justice (CCJ), the Guyana Court of Appeal and the High Court have all ruled that that the results of the recount remained valid unless overturned by the High Court via an election petition. In the case Irfaan Ali et al v Eslyn David, the CCJ ruled 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’. Ms. David’s application should therefore have been addressed to the High Court under Article 163 of the Constitution via an election petition within 28 days of the declaration of the results; and any decision is appealable right up to the CCJ as the final court of appeal.
In the case Jones v GECOM, the Chief Justice dismissed the application by Misenga Jones, seeking 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 13 March 2020 report of the Chief Election Officer (CEO) instead. The Chief Justice held that most of the issues were res judicata and could not therefore be re-litigated. She reiterated the CCJ ruling that unless overturned by a Court in an election petition, the only data that could be used to declare the results of the elections would have to be the recount results or data. She concluded that ‘the ten declarations cannot be resurrected at this point in time. In this regard, there can no longer be an impasse between the Chairperson and the CEO as to the effect of art 177(2)(b) and s 96’.
The Court of Appeal unanimously disallowed the appeal against the above ruling of the Chief Justice and emphasized that the various challenges to the validity of the recount Order could 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. One of the Judges, Justice Sewnarine-Beharry, added that, given the CCJ’s endorsement of the validity of recount Order, the Court was ‘estopped from enquiring into any matter which had the effect of vitiating an election, or from enquiring into whether GECOM or its members had validly performed their functions, except by way of an election petition’.
Filing of two election petitions
Having exhausted the judicial process to the fullest to block GECOM from declaring the results of the elections based on the recount, the APNU+AFC filed two election petitions challenging the results.
On 31 August 2020, lawyers for Claudette Thorne and Heston Bostwick filed election petition 88/P with the High Court in accordance with Article 163 of the Constitution. That article provides for the High Court to have exclusive jurisdiction to determine, among others, any question regarding the qualification of any person to be elected a member of the Assembly; and whether an election has been lawfully conducted or the results have been or may have been, affected by any unlawful act or omission. By Section 5(1) of the National Assembly (Validation of Elections) Act, an election petition has to be filed within 28 days of the declaration of the elections results.
The petitioners are challenging the declared results of the 2 March 2020 elections and are requesting the Court to determine, among others, whether the elections have been lawfully conducted or whether the results have been, or may have been affected by any unlawful act or omission, and whether the seats in the National Assembly have been lawfully allocated.
A second petition, 99/P, was filed on behalf of Monica Thomas and Brennan Nurse on 17 September 2020. The petitioners are contending that the elections were unlawfully conducted and/or that the results, (if lawfully conducted), were affected or might have been affected by unlawful acts or omissions. Accordingly, they are requesting the Court to determine the legality of the elections and of the results that led to the declaration and allocation of seats in the National Assembly. The petitioners are also seeking an order to direct the GECOM Chair to declare former President David Granger the winner of the elections.
Chief Justice’s ruling on Petition 99/P
Last Monday, the Chief Justice dismissed the second petition because of a breach in the filing procedure for the case. Section 8 requires the petitioner to serve notice on the respondent not exceeding five days of the filing of the petition. While Petition 88/P was filed within the prescribed timeframe, it was not until 17 September 2020 that Petition 99/P was filed. Added to this, the respondent, former President David Granger, did not sign the related court documents until 25 September 2020 which is outside the five-day period stipulated by Section 8.
The Chief Justice stated that non-adherence of service within the specific timeline would make the petition a non-starter, noting that Mr. Granger was a necessary party in the proceedings.
She further stated that there was compelling evidence to support the respondents’ argument that Granger was not served with the petition on time.
The Chief Justice noted that both the affidavit of service and the return of service documents were inconsistent, adding that while there was sufficient time within which the petitioners could have brought to the attention of the court what they described as a genuine mistake in recording the date of service, no effort was made to so do. She also rejected supplementary affidavits filed by the petitioners which sought to explain that the former President made a mistake when he signed the related court documents and that the petitioners had made a careless blunder.
The Chief Justice, however, considered the explanations “preposterous” and “absurd.”
The Chief Justice then declared the petition a nullity and dismissed it.
Chief Justice’s decision on Petition 88/P
In relation to Petition No. 88/P, the Chief Justice agreed to commence hearing on 7 April and set 12 February for the petitioners to submit their arguments. The respondents are required to file their responses by 5 March, and any further submissions are to be made by 19 March.
The Chief Justice also ordered GECOM to hand over its Statements of Poll and Statements of Recount to the Registrar of the Supreme Court for safe-keeping and not to destroy any other documents connected with to the elections until the petition is heard.
