In deciding against a proposal for an internal investigation to be launched into the events of the March 2020 general and regional elections, Chairperson of the Guyana Elections Commission (GECOM) retired Justice Claudette Singh reasoned that such an exercise would be outside of the remit of the body and potentially infringe on the jurisdiction of the High Court.
Opposition-nominated commissioners Vincent Alexander, Charles Corbin and Desmond Trotman submitted the proposal on February 3, 2022, arguing that GECOM is in no position to objectively contribute to the amendment of any electoral laws or reforms without investigating the weaknesses of the system that led to the attempt to skew the results.
When the proposal was tabled, the Commission agreed to the internal investigation but did not agree on when the process should commence. Back in March, the APNU+AFC met virtually with GECOM where it said that Guyana’s electoral system is in desperate need of significant reforms and urged the GECOM not to hold elections before.
Only last Thursday Pre-sident Irfaan Ali announced that an international team will be named by Tuesday to form a Commission of Inquiry (CoI) to probe the attempts to rig the 2020 elections.
In her written decision on the issue, which was seen by Sunday Stabroek, Justice Singh said that it is important to distinguish between a review of GECOM’s processes in effectively conducting an election and an investigation into what actually transpired during a particular election. She reasoned that a review of GECOM’s processes in effectively conducting an election examines the effectiveness of the system that is in place to ensure that an election is carried out in accordance with the law, which may include the consideration of claims made in respect of a particular election to ascertain whether there are (potential) weaknesses in the system that need to be addressed.
She added that an investigation into what actually transpired during a particular election is to determine the truth of particular claims, leading possibly to a determination of the validity of an election.
Citing Article 163(1) of the constitution, the GECOM Chair reminded that the High Court has exclusive jurisdiction to determine questions relating to the validity of an election.
“GECOM is not a court of law and therefore has no authority to determine whether an election was lawfully conducted, and no such power was conferred on it under Article 162 (1) (b). A perusal of Articles 162 and 163 shows that the Constitution clearly and sharply separates the functions of GECOM and the High Court respectively in matters of electoral laws.
“The Commission does not have, and cannot clothe itself with, the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein. Any such question can only be determined by way of an election petition filed in the High Court,” she said in her ruling.
She posited that the opposition-nominated commissioners’ proposal raises two questions: mainly voting of persons who could not have voted and the absence of documents from a number of ballot boxes.
Addressing both questions, Justice Singh said that the validity of votes is addressed in Section 96 of the Representation of the People Act Cap 1:03, which calls on the Chief Election Officer to calculate the total number of valid votes of electors which have been cast for each list of candidate. She also quoted the Caribbean Court of Justice’s ruling on the validity of votes in the case of Mohamed Irfaan Ali v Eslyn David.
CCJ President Adrian Saunders had said “validity in this context means, and could only mean, those votes that, ex facie, are valid. The determination of such validity is a transparent exercise that weeds out of the process, for example, spoilt or rejected ballots. This is an exercise conducted in the presence of, inter alia, the duly appointed candidates and counting agents of contesting parties. It is after such invalid votes are weeded out that the remaining “valid votes” count towards a determination of not only the members of the National Assembly but, incidentally as well, the various listed Presidential candidates. If the integrity of a ballot, or the manner in which a vote was procured, is questioned beyond this validation exercise, say because of some fundamental irregularity such as those alleged by Mr Harmon, then that would be a matter that must be pursued through Article 163 after the elections have been concluded”.
One of the major contentions of the opposition was that the 2020 elections were tainted because a number of dead persons and those outside of the country were marked as having voted. The Chief Immigration Office had submitted a list of names of persons that were allegedly out of the jurisdiction on election day but it was disputed, with a number of the named persons providing proof that they were in the country.
The GECOM Chair said that only a court can determine the credibility of such information by calling witnesses and subjecting them to cross-examination. These witnesses would be no other than Immigration officers who would have to tender the Entry and Departure documents of those persons and also their identity must be ascertained from their travel documents.
“The most that GECOM can do in this regard is to examine its processes to see whether there are gaps or weaknesses in its processes that make it possible for votes to be counted for persons who could not have voted. This requires no more than an examination of the processes currently employed in light of the claims made and a determination of whether there is potential for such to have occurred. If there is, then the Commission can consider what adjustments can be made to improve the system,” she said.
During the recount process for the 2020 elections, it was discovered that a number of documents were missing from the ballot boxes. In that regard, Justice Singh said that an Election Court is properly equipped to deal with such. She posited that GECOM can only examine and strengthen its processes and place greater emphasis in the future on ensuring that they are fully complied with by all of its staff to present reoccurrences.
“Therefore, I am of the view that any review focused on investigating actual occurrences during the 2020 Election by GECOM would be outside of the scope of GECOM’s power and a circumvention of the law questioning the validity of an Election.
“However, should the intention of a proposed review be to consider if there are, in fact, potential weaknesses in the processes employed by GECOM for the conduct of elections, and to propose improved methods or processes for future elections, then this can and should be undertaken. There is, in fact, an established mechanism whereby the final report of an election, which the CEO must cause to be prepared. This report can be analyzed and be the basis for such a discussion,” she concluded.
The Opposition-nominated Commissioners have reserved their right to table a response to the decision. However, they have expressed dissatisfaction with the Chair’s ruling.
Repudiation
Meanwhile, in a statement on Thursday, the Alliance For Chance (AFC) said that it “rejects and repudiates” the decision to not conduct an internal review of the 2020 elections.
“The AFC fully expected a routine examination of the performance of the electoral system, as well as an independent review of the breakdowns revealed in the national recount exercises, which infuriated many citizens locally and abroad. GECOM should be reminded that it has more than a statutory responsibility to manage the conduct and process of elections in Guyana and present a review at the end of the process to demonstrate transparency and impartiality,” the AFC said.
It added that given the allegations stemming from the elections, GECOM should review its decision not to conduct a comprehensive review.
“This review should include personnel, structures and all its systems leading up to, during and after the election day exercise, particularly those surrounding the conduct of the national recount. This would be an essential requirement of true parliamentary democracies to conduct systems review following national elections, particularly in cases where allegations of widespread fraud, corruption, bribery and conspiracy were charged,” it said.
AFC said that GECOM’s credibility is at stake and urged that it takes the necessary steps to restore hope in the election process.
“…blaming the political actors alone while ignoring deep internal systemic failings will not aid GECOM’s case. Simply put, no other elections should be conducted until a comprehensive analysis of the weaknesses of 2020 is completed and consequential reforms are implemented. The AFC strongly believes the refusal to engage in a review is a cowardly abdication of responsibility,” the party said.
