After hearing almost two hours of arguments the Court of Appeal yesterday set March 22nd for further testimony in the appeal of Chief Justice Roxane George’s ruling throwing out Elections Petition 88 of 2020, Claudette Thorne et anor v Keith Lowenfield.
In this matter, petitioners Claudette Thorne and Heston Bostwick have maintained the argument that Section 22 of the Elections Law (Amendment) Act (ELAA) 2000 is unconstitutional and that Order 60 of 2020, which authorized the recount of the March 2nd 2020 elections, is invalid and of no effect.
They also claim that Returning Officers’ declarations could not have been set aside and the actions of the Guyana Elections Commission (GECOM) were unlawful and infringed on the Jurisdiction of the High Court under Article 163 of the Constitution.
Order 60 was created by virtue of Article 162 (1) of the Constitution and Section 22 of the Elections Law (Amendment) Act 2000, to resolve irregularities before declaring the results of the elections.
The current appeal is being heard by acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Dawn Gregory and Rishi Persaud.
GECOM’s lawyer Anthony Astaphan in his arguments yesterday pointed out that the Chief Justice in her ruling nullifying the petition, rightly pointed out that the authority controlled by parliament was in fact circumscribed. He argued that Section 22 is not unconstitutional and that the Chief Justice was correct in her findings.
He asserted that had it not been for Order 60 “…only God would have been able to tell us when the declaration (of the results) would have been made” adding that it was in the public interest that GECOM acted and ensured that such a declaration was made.
While appealing to the presiding judges not to find that there were any breaches in any of the orders that authorized the recount, the lawyer said that even if a breach is found in any of the orders the mere existence of such a breach is insufficient to nullify the recount.
He pointed out that even in the appeal there is no question or any allegation that the recount was in fact a sham which resulted in a significant section of the Guyanese populace having their rights rendered null by any skullduggery.
“The count was done in full public view,” he maintained, adding that even if there was a breach procedurally there has to be some clear evidence that it affected the results of the elections because votes which should have been counted were not counted.
Senior Counsel Douglas Mendes who represents Vice President Bharrat Jagdeo—one of the Respondents in the action, in his submissions also maintained that Order 60 was properly and lawfully issued by GECOM using the power of Article 162 (1) of the Constitution and Section 22 of the Elections Law Amendment Act 2000. And even if Section 22 was determined to be unconstitutional Mendes pointed out that the elections was not “a sham” and in fact reflected the will of the Guyanese people. “…so there is no basis to invalidate the elections,” he maintained. He pointed out that there is no challenge in the case to the recount exercise itself but rather the only issue raised is the constitutionality of Section 22.
Attorney General (AG) Anil Nandlall SC who is also a respondent in the matter, said that in challenging the appeal he is relying on submissions he has made both in the High Court and the Court of Appeal as it relates to this matter and the ruling of the Chief Justice. He said that the compass of the appeal is narrow as the singular issue is whether GECOM acted properly in delegating certain powers in Order 60 utilising Section 22 of the ELAA.
He stressed that GECOM acted lawfully and constitutionally in exercising its authority. He contended that the matter has already been determined right up to the Caribbean Court of Justice (CCJ) and as such it would be impossible for the presumption to be rebutted as there is no unconstitutionality in the germ of Order 60. He asked that the appeal be dismissed and that an appropriate order of costs be made. Forde, who will continue his response to the arguments on March 22nd, was not moved by the submissions and held the strong view that his clients have a valid case.
Thorne and Bostwick are adamant that the Elections of March 2nd, 2020, were unlawfully held.
Their petition which was dismissed, sought to invalidate the national recount of ballots cast following the contentious announcement of results from the elections. Among other things, Chief Justice George ruled that Section 22 of the ELAA and Order 60 made thereunder by which the recount was facilitated, were not in violation of the Constitution.
It was the contention of the petitioners, 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.
Dissatisfied with the ruling, they lodged an appeal before the Court of Appeal.
The Opposition had filed two petitions challenging the results. In January of last year, Justice George dismissed the first of those petitions after finding that the Party’s presidential candidate David Granger was not served on time. Petitioners Monica Thomas and Brennan Nurse subsequently appealed to the local appellate court which ruled that it had jurisdiction to hear the challenge.
Vice President Jagdeo and the Attorney General however challenged the decision of the local appeal court giving itself jurisdiction to hear the appeal. Their contention before the CCJ was that having not been determined on its merits, the petition could not be appealed. The Trinidad-based CCJ agreed and set aside the Court of Appeal’s ruling while finding that the Chief Justice was correct in her ruling.
