The opposition APNU+AFC has lost its bid to invalidate the national recount of ballots cast which was undertaken by the Guyana Elections Commission (GECOM) following last year’s contentious General and Regional Elections.
Acting Chief Justice Roxane George-Wiltshire SC dismissed the petition filed on behalf of the coalition, ruling that both Section 22 of the Election Laws Amendment Act (ELAA), and Order 60 which facilitated the recount, are well within the ambit of the Constitution, and therefore lawful.
She made it clear that GECOM was empowered to conduct the recount.
Delivering her almost two-hour long virtual ruling yesterday morning, Justice George-Wiltshire also detailed that the petitioners had presented not a single piece of evidence to substantiate purported irregularities they sought to advance.
It was the contention of petitioners—Claudette Thorne and Heston Bostwick, that Order 60 was “bad” in law because it was brought into force by an unlawful piece of legislation—Section 22 of the ELAA.
They wanted the court to determine among other things, questions regarding whether the elections had been lawfully conducted or whether the results had been, or may have been affected by any unlawful act or omission and in consequence thereof, whether the seats in the National Assembly had been lawfully allocated.
Dismissing the claims made by Trinidadian Senior Counsel John Jeremie—who led the legal team representing the petitioners, the Chief Justice said that by enacting Section 22, Parliament in no way relinquished its powers to GECOM.
She noted that in fact, having envisioned the possibility of difficulties such as those with which the March 2nd, 2020 polls were confronted, the framers of the Constitution reposed in GECOM, the power to address and resolve such issues for expediency.
It was on this point that she specifically stated that GECOM has the power to recount.
It had been the argument of the petitioners that the matters with which the Commission had been confronted, ought to have been dealt with by way of an election petition.
The chief judge would go on to hold, however, that the recount in no way usurped the exclusive jurisdiction vested in the High Court to hear challenges brought by way of an elections petition.
During the unprecedented five-month process which finally culminated with an official declaration of results on August 2nd last year, GECOM had invoked the legislative provision in Section 22 and drafted Order 60, which outlined a procedure to be used for the recount.
Among other things, the recount was to arrive at a final credible numerical count of all votes cast as a means of assuaging the contestations which arose, primarily over the results which had been called into question for electoral district 4, which had been submitted by embattled Returning Officer (RO) Clairmont Mingo.
Impugned
Mingo’s declaration had been impugned by the Trinidad-based court of last resort—the Caribbean Court of Justice (CCJ) which had so ruled in earlier litigation which had gone before it, surrounding the same March 2nd, 2020 polls
In her analysis of Section 22, Justice George-Wiltshire said that quite contrary to the petitioners’ position that the piece of legislation offended the constitutional provisions in Article 162 and 163, it more operated as a buttress for those provisions.
She said that the ELAA was passed by the National Assembly and assented to, and that prima facie, there is therefore no contravention of this article.
As opposed to arguments put forward on behalf of the petitioners, the Chief Justice also held that there had been no violation of the doctrine of Separation of Powers. She said that in the circumstances of the instant case, Section 22 is lawful.
She said that Order 60 did not amend the Representation of the People Act (RoPA) as claimed by the petitioners, but that the RoPA remains as originally enacted; and that Order 60 has to be construed as simply modifying the RoPA to provide for a mechanism to allow for the recount to be conducted by expanding the recount provision in that Act.
She said that all it did was set out a procedure for the recount of ballots—a power which she said GECOM possesses under the provisions of the RoPA.
Contrary to the contentions held by counsel for the petitioners, the Chief Justice said, “So in issuing Order 60, GECOM did not purport to amend any legislation.”
She said that if for some reason any person exercising powers or performing duties pursuant to Article 162 (1) (b) goes rogue and does not follow the required provisions of the RoPA and the directions of GECOM, it cannot be that GECOM must accept the results they provide, and await the outcome of an election petition.
She noted that as counsel for the Commission, Anthony Astaphan had stated, GECOM simply could not just accept its officers not complying with the requirements to complete the elections process, but proceed regardless.
The judge said that this was precisely why Parliament gave GECOM powers to deal with difficulties—so that the election process could be completed.
She said that given the difficulties, it would not have been prudent for GECOM to declare the results in the peculiar circumstances that attended the completion of the process of the March 2nd elections.
Plethora
Referencing a plethora of case law authorities, she said “GECOM cannot be expected to act on advice known to be unlawful or lacking in legitimacy and act on it”.
The Chief Justice concluded that Order 60 was not ultra vires the Constitution or Section 22. She said that a combination of Article 162 (1) (b) and Section 22 conferred the power on GECOM to issue the order if it considered it necessary or expedient, to ensure impartiality, fairness and compliance on the part of persons exercising powers or performing duties on its behalf as regards the election process and the declaration of the results of the elections.
The Chief Election Officer (CEO) and the Returning Officers (ROs) she said, are among the persons contemplated by Article 162 (1) (b).
She said that it is in this overall constitutional and legal context that the actions of GECOM have to be assessed. The Chief Justice said that if there were no difficulties, then the actions of the Commission would have been unlawful.
GECOM, she said, as part of its core function, pursuant to Articles 62 and 162 of the constitution had an obligation to complete the election process and therefore had a concomitant obligation, duty and responsibility to address such difficulties, to achieve this.
“Order 60 was an aid in the elections process,” the chief judge remarked; permitting a determination of the result. She added that it is itself limited by its provisions.
She said, too, that Order 60 was meant to facilitate GECOM’s mandate to declare the final result of the elections, given the circumstances prevailing at the time. She said that the Order therefore merely modified the RoPA and provided an alternative mechanism for arriving at the final results for those particular polls.
The judge then went on to note that Section 84 of the RoPA provides for the ROs to add up the votes recorded in favour of the List, and publicly declare the votes. Then, pursuant to Sections 89, the ROs deliver their returns to the CEO for final tabulation of the votes so that a report on of the results could be prepared, pursuant to Sections 96, for submission to GECOM.
She said that in addition, Section 84 makes provision for addressing errors and mistakes in statements of poll (SOP) as well as requests for recounts.
Not alien
“A recount of votes is therefore not alien to the election process,” the chief judge said.
By Articles 177 of the Constitution and Section 96 and 99 of the RPA, the judge said that what is clear, is that “it is GECOM that declares the final result, and not the Returning Officers and/or the CEO”
GECOM she said, was meant to be, and has to be in control of the process until satisfactorily completed.”
“This is the ultimate power that GECOM has pursuant to Article 162,” she said.
Against this background, she said that Order 60 does not confer any additional powers on GECOM, but simply alters the procedure to arrive at the result that the RoPA requires—the result of the election, she said.
While the procedure was different, she noted that the aim and the objective were the same—to count the ballots and determine the votes cast for the list of the contesting political parties.
“I consider and hold that Order 60, and for that matter its enabling provision Section 22, did not and have not usurped the jurisdiction of the High Court under Article 163, to determine whether an election was lawfully conducted.”
The judge said that while the CCJ did not pronounce on the constitutionality of Sections 22 and Order 60, the apex court emphatically endorsed it.
On this point, she said that applying a purposive interpretation in coming to its conclusions about the effect of Order 60, the CCJ stated that the order did not amend the Constitution and that the pronouncements made by that court of last resort, are binding on her.
She said that the CCJ had in fact pronounced that Order 60 was required to address the political impasse and which allowed for a transparent method through a national recount. She noted, too, that the CCJ had also stressed that Order 60 did not create a new electoral regime.
Valid votes
The Chief Justice noted further that under the legal infrastructure governing the election process, unless and until an election court considers otherwise, the votes already counted are valid votes and are incapable of being declared invalid by any person or authority.
This, she said, supports the conclusion that all the recount process did was to recount ballots cast on Election Day. On this point, she said that there has to be evidence to impugn the prima facie valid votes cast so as to discount them from being recounted.
The judge noted that while the petitioners alleged egregious breaches and the tampering with of ballot boxes, the counting and recounting of ballots and the use of non-statutory documents to record and report the results, no evidence was produced to substantiate these claims.
The judge said that while the petitioners contended that unlawful acts and omissions affected or may have affected the results, there was no evidence to so substantiate and there was only a suggestion of such from the Bar table.
“With the greatest respect, much more would have to be produced than just a mere suggestion from the Bar Table,” the judge noted.
The judge concluded that there is insufficient evidence in the petition to support the claims made and that it cannot be said that any evidence at all existed which affected the final result declared.
There was no breach, violation or non-compliance on the part of GECOM, the judge said and the elections she added could not be said to have been made a sham or a travesty by the Commission, as claimed by the petitioners.
Justice George-Wiltshire said that the complaint by the petitioners, that the statements of recount (SOR) replaced the declarations of polls made by the ROs is now moot and thereafter dismissed the petition.
The Chief Justice also made the separate and consequential order that the SOPs and SORs are to remain lodged and secured in the custody of the Registrar of the Supreme Court, until all likely appeals have been completed, or a court orders otherwise.
The Opposition had filed two petitions challenging the results. Back in January, however, Justice George-Wiltshire dismissed the other petition after finding that the Party’s presidential candidate David Granger was not served on time.
The petitioners in that appeal have filed an appeal which is set to come up for hearing on June 14th, before the appellate court.
Lawyers for the respondents—GECOM, the Attorney General, and now President Irfaan Ali and Vice President Bharrat Jagdeo, had argued that both Order 60 and Section 22 were lawful.
Ali and Jagdeo’s legal team, led by Trinidadian Senior Counsel Douglas Mendes, had argued among other things that where certain difficulties arise in respect to an election, Section 22 empowers the Commission to resolve the difficulties.
Mendes and Astaphan of Dominica had both argued that Parliament, by virtue of Section 22 delegated to GECOM the power to make provisions as it sees fit to resolve those difficulties for expediency.
Attorney General (AG) Anil Nandlall SC who is also a respondent, agreed with Mendes’ and Astaphan’s submissions that in accordance with Section 22, GECOM is empowered to resolve the difficulties with which it was confronted.
The three attorneys advanced that Section 22 grants GECOM the authority to amend by Order several pieces of legislation so as to resolve any difficulty related to the implementation of the Elections Act.
The results of a national recount of all ballots cast showed that it was the PPP/C which had won the elections with 233,336 votes over the 217,920 which the coalition managed to secure.
