GEORGETOWN, Guyana – Chief Justice Roxanne George will on Monday next week deliver a ruling on whether or not the Guyana Elections Commission (GECOM) would be allowed to use the recounted, valid and certified results to declare the official outcome of the disputed March 2 regional and general elections.
“The level of engagement that I have had all day has been quite energising I must say, but I had hoped that I would have been able to finish the decision by Sunday, but I think that the richness of the submissions that have been given to me today I would fix this for Monday …at four “O” clock in the afternoon,” she told the attorneys representing various stakeholders on Friday.
Private citizen, Misenga Jones is seeking a number of reliefs including asking the High Court to compel GECOM to use the 10 district declarations in announcing the winner of the elections.
She has named GECOM, its Chairman retired justice Claudette Singh and the Attorney General, Basil Williams as respondents, but several others including the Opposition Leader Bharrat Jagdeo and Irfaan Ali, the presidential candidate of the main opposition People’s Progressive Party/Civic (PPP/C), have been added to the list of respondents.
Trinidad-based Senior Counsel, John Jeremie, who is leading a battery of lawyers representing Jones, argued that the matter before the court is not an election petition relating to the impasse that now exists between the Chief Elections Officer and the Chair of GECOM.
“To argue otherwise would be nonsensical because you do not get to an election petition without resolving this dispute. This is a case…worthy of intervention…it is a case of the exercise of the supervisory jurisdiction of the court.
“We do not challenge the validity of the election, the challenge is squarely to the proper processes to be employed,” said Jeremie, a former attorney general in Trinidad and Tobago.
He said section 22 “violates the separation of powers principle (and) it is not possible for Parliament to purport to delegate law making functions to an executive body.
“We say section 22 is bad and it is like Humpty Dumpty so that all the King’s horses, all the King’s men cannot put section 22 together again.
“Now what is even worse is that Parliament is dead and the legislation that 22(2) provides there must be oversight,” he said, adding “:so no guidance to the exercise of discretion and the fact that Parliament is dead’.
He said that the “plain words” of section 96 of the Representation of the People’s Act (RPA) suggest that the Chief Elections Officer shall after calculating the total number of valid votes of electors do certain things and that information is to be furnished by returning officers .
Jeremie said the affidavit of the Chief Elections Officer, Keith Lowenfield contains a summary of changes of ballots made and they were not done by the presiding officers in the presence of appointed counting agents under the RPA”
He said there is no power under the RPA to allow the chairman of GECO “to set aside declarations made under the RPA”.
But attorney, Kim Kyte-Thomas, who is representing the GECOM chairman, has asked the High Court to throw out the case arguing that Lowenfield cannot go off on a “frolic” of his own and put himself above GECOM, the laws of Guyana and even the Constitution.
She said that it would be unthinkable that one man, an employee of GECOM, could be vested with such absolute and unchecked power.
Kyte-Thomas, a former Solicitor General, in her written submission, argued that Section 18 of the Election Laws (Amendment) Act of 2000 specifically provides that the Chief Elections Officer shall be subject to the direction and control of the Commission.
“Therefore, your Honour, in relation to the determination of election results, to construe the phrase, ‘acting only in accordance with the advice of the Chief Election Officer’ in Article 177 (2) (b) to mean that any report whatsoever that the CEO produces must be acceptable would be tantamount to elevating the CEO above the Commission, the Constitution and the Laws of Guyana.
“One man or woman cannot be vested with such absolute unchecked power. It is inconceivable that the framers of the constitution would have so intended,” Kyte-Thomas argued.
But Senior Counsel Neil Boston, the attorney for Lowenfield, argued that since his client on March 13, presented a report of the declarations made in all ten regions, the GECOM chairman must use that to declare the results and nothing else.
He said that the March 13 declaration should stand because it was made before the order for the national vote recount was made and GECOM could not have undertaken the recount lawfully because the recount aimed to address difficulties with the electoral process.
“It is respectfully submitted that GECOM cannot by a subsidiary legislation (the recount order) give itself the power to resolve elections disputes that arise in the course of an election which said disputes the Constitution has placed in the exclusive jurisdiction of the Election Court,” Boston told the court.
Williams told the High Court that ‘what we have is a report by the Chief Elections Officer…not acted upon under the law.
“That is a serious breach of our Constitution,” the Attorney general said, adding in that report, Lowenfield had named President David Granger as the duly elected head of state.
“It followed rgart the chairman had to deem him elected. That did not happen. We have a constitutional crisis in that regard,” Williams said, adding that the new directions given by the chairman to the chief elections officer in in direct conflct with the law.
Mendes, who like other attorney present, argued that the High Court has no jurisdiction to hear the matter.
“You have no jurisdiction to entertain the application, to entertain the prayer for relief that is being sought on behalf of the applicant in this matter. You have no jurisdiction in these proceedings to determine whether section 22 is unconstitutional, you have no jurisdiction to determine whether orders to stay is valid, you have no jurisdiction to determine whether the recount is valid.
‘You have no jurisdiction to determine whether the delca5rations made by Mr. Mingoo (Returning Officer) are valid or not, you have no jurisdiction to determine any of those things simply because the law says that all of these matters are to be determined on an election petition.
“So this case is a nonstarter,” Mendes added.