During the period between the passing of the vote of no confidence in the previous Government on 21 December 2018 and the swearing in of the President Irfaan Ali on 2 August 2020, we had carried a total of 40 articles on the election-rated matters, including the outcomes of the various court cases that were filed. These articles have been published in book form under the caption “Triumph of Democracy and the Rule of Law: Guyana 2020 Elections and their Aftermath”. In the Afterword to the publication, we had also discussed the Chief Justice ruling on the two petitions challenging the declared results of the 2020 elections.
Last Monday, the Guyana Court of Appeal comprising Chancellor of the Judiciary Yonette Cummings-Edwards, Justice Rishi Persaud and Justice Dawn Gregory, unanimously disallowed the appeal against the Chief Justice ruling on Petition 88/2020, which for the completeness of our coverage and analysis of the 2020 election-related matters, is the subject of today’s article.
Background to the case
Following the declaration of the results of the 2 March 2020 national and regional elections, two election petitions were filed in the High Court in accordance with Article 163 of the Constitution, challenging the results of those elections. That Article provides for the High Court to have exclusive jurisdiction, among others, as to whether an election has been lawfully conducted or the result thereof has been, or may have been, affected by any unlawful act or omission; or whether the seats in the Assembly have been lawfully allocated. The decision of the High Court is appealable in the Court of Appeal.
In the first petition No. 88/2020, filed by Claudette Thorne and Heston Bostwick on 31 August 2020, the petitioners sought to challenge the declared results of the elections and requested the Court to determine, among others, whether the elections had 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.
The second petition No. 99/2020 was filed on 17 September 2020 by Monica Thomas and Brennan Nurse. In this case, the petitioners contended 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 requested the Court to determine the legality of the elections and of the results that led to the declaration and allocation of seats in the Assembly. They were also seeking an order to direct the Chair of the Guyana Elections Commission (GECOM) to declare former President David Granger the winner of the elections.
On 18 January 2021, the Chief Justice threw out Petition No. 99/2020 because of a breach in the filing procedure that requires the petitioner to serve notice on the respondent not exceeding five days of the filing of the petition. However, the respondent, former President David Granger, did not sign the related court documents until 25 September 2020 which was outside the five-day period.
In relation to Petition 88/2020, the Chief Justice heard arguments on 7 April 2021 from attorneys for both the petitioners and the respondents. The petitioners’ main argument was that Section 22 of the Election Laws Amendment (ELA) Act of 2000 under which GECOM issued Order No. 60 for the recount of votes, is unlawful. That section reads as follows:
(1) If any difficulty arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.
(2) Any order under subsection (1) shall be subject to negative resolution of the National Assembly, only if Parliament is not dissolved and not otherwise, and shall not be made after the expiry of three months from the date of the election.
Chief Justice ruling on Election Petition 88/2020
On 26 April 2021, the Chief Justice handed down her ruling on Petition 88/2020. She stated that GECOM acted in full compliance with the Constitution and the electoral laws in its conduct of the elections. She noted that neither Section 22 nor Order No. 60 is outside the realm of the Constitution and that the intent of the latter is to resolve irregularities, discrepancies, and anomalies occurring in the elections process and to determine a final credible count. The Chief Justice added that Section 22 is meant as an aid to the process to determine the election and is not a usurpation of the High Court’s jurisdiction under Article 163 of the Constitution:
Section 22 provides the parameters for its efficacy, and the power granted therein is not arbitrary. It includes sufficient mechanisms to establish that Parliament did not surrender or abdicate its powers. Thus, I hold that there was a lawful delegation of power as provided for in Section 22 so that GECOM could independently and properly control the election process.
The Chief Justice also noted that Section 22 authorises GECOM to make subsidiary legislation and that the power is only applicable when it appears to the Commission necessary or expedient for removing any difficulty. She rejected the petitioners’ argument that the power to modify the law can only be futuristic as this would not address any difficulties that would have arisen. The Chief Justice added that Order No. 60 did not confer any additional powers on GECOM but simply altered the procedure to arrive at the result that the Representation of the People Act requires. Following the Chief Justice’s ruling, the petitioners filed an appeal with the Court of Appeal.
Arguments of the petitioners and the respondents on appeal
During the Court of Appeal hearing, the petitioners contended that: the Chief Justice erred in law and misdirected herself when she misapplied the doctrine of strict compliance; and failed to consider the objective of the petition in making her decision based on the content of the Affidavit of Service. They insisted that Section 22 of the ELA Act is unconstitutional, and by extension Order 60 of 2020, which authorised the elections recount process, was invalid, null, void, and of no effect.
The respondents’ rebuttal was that the Commission is in fact empowered under the said Act to resolve the difficulties that may arise during the election process. To this, the petitioners contended that: any such difficulties ought to have been dealt with by way of an election petition, and not by an Order issued under Section 22; power could not be delegated by Parliament to GECOM; and therefore Section 22 which facilitates this, is unlawful.
The respondents countered by insisting that: the Commission is endowed with the power vested in it under Section 22 which is obtained by virtue of Articles 162 and 163 of the Constitution, to resolve any difficulties it may experience; and anything else would result in chaos, hence the recount Order. However, the petitioners contended that the initial declarations could only have been overturned by an election court and not by any Order of GECOM. To this, respondents rebutted that GECOM really did not need Section 22 to act to resolve the difficulties with which it was confronted as it is so empowered to do so even under Article 162 of the Constitution; and Section 22 merely supplements or provides one of many mechanisms for ensuring that there is compliance with Article 162.
The respondents further argued that the Chief Justice in her ruling nullifying the petition rightly pointed out that the authority controlled by Parliament was in fact circumscribed. They contended that: Section 22 is not unconstitutional and that the Chief Justice was correct in her findings; had it not been for Order No. 60, no one would have been able to tell when the results of the elections would have been declared; and the Order was made in the public interest. The respondents 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 ELA Act. Even if Section 22 was determined to be unconstitutional, they argued that that the elections reflected the will of the Guyanese people and therefore there was no basis to challenge the results of the recount exercise.
Court of Appeal ruling
Last Monday, the Court of Appeal, by unanimous decision, dismissed the appeal against the decision of the Chief Justice in relation to Election Petition 88/2020. The Chief Justice had ruled that the ELA A and Order 60 made thereunder, are not unconstitutional but are lawful and valid; and consequently, the national recount of the ballots of the 2020 elections conducted by GECOM was lawful, constitutional and not in breach of the separation of powers doctrine.
According to the appellate court:
In short, the Appellants failed to discharge the heavy legal burden of establishing in law the unconstitutionality and illegality they alleged against the Election Laws (Amendment) Act, Order 60 and the national recount of the ballots done. Faced with the difficulties in declaring the final results of the 2020 Elections, GECOM exercised its constitutional duty enshrined in Article 162 of the Constitution and its statutory powers ensconced by the Election Laws (Amendment) Act and crafted Order 60 to overcome those difficulties
The court further stated that Order 60 was created by virtue of Article 162 (1) of the Constitution and Section 22 of the ELA Act to resolve irregularities before declaring the results of the elections.
According to Justice Rishi Persaud, the doctrine of separation of powers is not offended in Section 22 and that ‘there is no evidence on record which will even remotely suggest that an election has been or may have been affected by an unlawful act…’. In rejecting the argument that the genesis of the recount Order had transgressed the separation of powers doctrine, the Chancellor emphasized that there was no breach in the separation of powers doctrine. Justice Dawn Gregory was also in agreement that there was no breach, violation or non-compliance by GECOM of the Constitution or the laws governing elections such as to make the elections a “sham” or a travesty as claimed by the petitioners. She indicated her agreement with the Chief Justice that GECOM had not unlawfully utilized its powers when it enacted Order No 60 and held the recount exercise.
Hailing the Chief Justice ruling as ‘a bold, compelling and erudite analysis of the law’, former House Speaker Ralph Ramkarran asserted that:
When published, it will stand at the pinnacle of the Caribbean’s and Guyana’s already considerable jurisprudence on election law. It will become a permanent landmark to guide those everywhere who seek to uphold the integrity of elections, and to the legacy of a Chief Justice with many years of productive work ahead.
Conclusion
Since 1992, the results of almost all national and regional elections have been challenged in the courts by the main losing party. With the next elections due in 15 months’ time, it is important for policy makers to urgently address the root causes for these challenges.
Considering that the two major political parties derive their support almost exclusively from the two main ethnic groups in the country, the “winner takes all” policy is not working. Whichever group wins the elections, the other group feels left out in the process of managing the affairs of the State as well as nation building. In some cases, it feels discriminated against, especially as regards employment opportunities and in the award of government contracts. In the circumstances, an alternative model of democratic governance needs to be put in place to enable all stakeholders to be given an opportunity to contribute to the development of the country. Both the major political parties have been guilty of engaging in a “window-dressing” affair in order to give the impression that an inclusive government is in place whereas the reality is quite the opposite.
With the impending establishment of the Constitutional Reform Commission, a glorious opportunity is now being presented to move away from the “winner takes all” policy to one that reflects a genuinely shared democratic governance structure. For example, no major legislation should be passed in the Assembly unless at least 60 percent of voting members support it. Other examples could include:
(a) Sharing of ministerial portfolios based on the standing of political parties at the polls;
(b) The post of Prime Minister going to the party that secures the second highest number of votes; and
(c) Appointment of heads of constitutional agencies and independent State institutions as well as membership of State boards to be based on technical and professional qualifications and training rather than on political considerations.
Once some form of shared governance is in place, we could very well see a change in the attitude of the electorate to casting their votes based on due consideration of policies and issues at hand as reflected in the political parties’ election manifestos as well as their past performance, rather than on the basis of ethnic sentiments.
