By Feona Morrison
Appeal Court Judge, Dawn Gregory-Barnes, this afternoon, fixed strict timelines for the filing of submissions in a court action seeking to restrain Chief Elections Officer (CEO), Keith Lowenfield from handing over his final report to Chairperson of the Guyana Elections Commission (GECOM), retired Judge Claudette Singh, who would in turn, declare the winner of the March 02, 2020 General and Regional elections.
The Appeal Court Judge convened a hearing this afternoon following the filing of a Notice of Motion by government-aligned lawyer, Mayo Robertson on behalf of government affiliate Eslyn David, who is seeking a declaration, and several Orders, as it relates to the conduct of the electoral process by the GECOM.
Following a brief hearing, the court granted applications for other persons to be added as Respondents in the case. David has listed Justice Singh, Lowenfield and Attorney General Basil Williams, as the Respondents.
Justice Singh is represented by former Solicitor General Kim Kyte-Thomas; Lowenfield was unrepresented by counsel, but appeared in person; Williams appeared in person, in association with lawyer, Maxwell Edwards.
Attorneys-at-Law Devindra Kissoon, Anil Nandlall and Sanjeev Datadin led by Trinidadian Senior Counsel, Douglas Mendes appeared for Leader of the Opposition People’s Progressive Party Civic (PPP/C), Bharrat Jagdeo and the party’s Presidential Candidate Irfaan Ali, who were joined as added Respondents.
Representatives from several smaller political parties, The Citizen Initiative (TCI), Change Guyana (CG), Liberty and Justice Party (LJP) and A New and United Guyana (ANUG) were also added as Respondents in the case. Their lawyers include former Speaker of the National Assembly, Senior Counsel Ralph Ramkarran, Presidential Candidate of ANUG and Timothy Jonas, the party’s Chairman.
Today’s hearing was a case management conference so as to fix timelines for filing of submissions and affidavits. Parties have up to 06:00hrs tomorrow, June 20, 2020 to file submissions via email. The court will begin hearing arguments in the substantive matter tomorrow, also at 11:00hrs.
David’s prime contention is that GECOM has failed to determine a final credible count of the votes. It is against this backdrop, David requested the court to grant a declaration that GECOM failed to act in accordance with the terms of the Recount Order No. 60 of 2020, and the amended order dated May 29, 2020 that were published in the Official gazette.
Describing herself as a keen follower of Guyana’s political affairs, who voted at the March 02, 2020 polls and is anxiously awaiting the results of those elections, David in an Affidavit in Support of the motion, contended that GECOM allowed votes which lacked credibility to be tabulated and included in the final count.
Relying on Section 96 (1) of the Representation of the People Act, she submitted that this provision requires the Chief Elections Officer to determine the “total number of valid votes”.
In asking the Court of Appeal for an Order that there be an interpretation of the words “more votes are cast” contained in Article 177 (2) (b) of the Constitution of Guyana, David argues that this must mean “valid votes” cast.
Article 177 of the Constitution speaks specifically to the Election of the President. Article 177 (2) (b) reads : where there are two or more Presidential candidates, if more votes are cast in favour of the list in which a person is designated as Presidential candidate than in favour of any other list, that Presidential candidate shall be deemed to be elected as President and shall be so declared by chairman of the Elections Commission acting only on accordance with the advice of the Chief Elections; after such advice has been tendered to the Elections Commission at a duly summoned meeting.
The incumbent APNU+AFC government has insisted that some of the votes lack credibility as it reported instances of dead people and those who have migrated voting, as well as missing polling documents from ballot boxes from PPP/C strongholds along the East Coast of Demerara. The government had called on GECOM to probe these anomalies which it says are glaring evidence of corruption.
APNU+AFC argued that should GECOM go ahead and make a declaration in light of the foregoing, it would undermine the credibility of the electoral body and erode public confidence in the electoral process.
But GECOM’s Chairperson noted that while these allegations are of a serious nature, the Constitutional body is not a court of law, and as such, has no authority to determine the veracity of these allegations.
Justice Singh, however, noted that Article 163 (1) (b) of the Constitution confers on the High Court exclusive jurisdiction to determine the validity of an election; the aggrieved party would have to file an election petition within 28 days after the final result is declared.
ONLY VALID VOTES CERTIFIED
PPP/C has insisted that the issues being raised by the government are for an election petition. One of the party’s Candidate, Attorney-at-Law Charles Ramson says that only valid votes were tabulated and certified during the Recount exercise.
To substantiate his position, Ramson made reference to the Statements of Recount and Certificate of District Tabulation for each of the 10 Electoral Districts. In fact, he pointed out, “Each Statement of Recount said valid votes. Each Certificate of District Tabulation said the total number of valid votes cast and valid votes cast for each party’s List of Candidates.”
Earlier this week, Justice Singh directed Lowenfield to prepare his report on the tabulated votes garnered from the National Recount pursuant to Article 177 (2) (b) of the Constitution and Section 96 of the Representation of the People Act. Section 96 of the Representation of the People Act, outlines the methodology for the allocation of seats in the 65-member National Assembly.
Lowenfield’s report was supposed to be handed over to the Commission yesterday at 13:00hrs. However, after being served by court marshals with the copies of the Notice of Motion, he refused to comply with the directive of Justice Singh. A vital meeting of the Commission scheduled for today at 13:00hrs, was also cancelled in light of the court proceedings.
In a report submitted to the Commission on Saturday, June 13, 2020 Lowenfield concluded that the elections were not “free and credible.”
Speaking about the results for Region One, Lowenfield said, “Finally, the summation of the anomalies and instances of voter impersonation identified in District One clearly does not appear to satisfy the criteria of impartiality, fairness and compliance with the provisions of the constitution and the [Representation of the People Act]. Consequently, on the basis of the votes counted and the information furnished from the recount, it cannot be ascertained that the results from District One, Barima/Waini meet the standard of fair and credible elections.”
This conclusion was replicated throughout the report regarding the other nine administrative regions.
However, the report of the three-member CARICOM team which observed and scrutinized the recount contradicted Lowenfield’s report. As a matter of fact, the CARICOM observer team concluded that the recount of the votes cast in the elections reflect the will of the people and provide a basis for the declaration of results.
The CARICOM team comprised Sylvester King, Deputy Supervisor of Elections of St. Vincent and the Grenadines; Cynthia Barrow-Giles, Senior Lecturer in the Department of Government at the University of the West Indies (UWI); and John Jarvis, Commissioner of the Antigua and Barbuda Electoral Commission.
The team, in addressing APNU+AFC allegations of persons voting in the names of those who were dead and persons who were out of the jurisdiction voting, said: “The Team viewed much of the exercise as a fishing expedition designed to gather data for a possible election petition and which resulted in considerable time being wasted during the recount. Furthermore, the net was cast extremely wide in the hope of at least making a small catch and at times the anticipated harvest ended in slim pickings.”
The CARICOM team underscored that it did not view the objections raised by APNU+AFC as materially relevant to the recount of the ballot, though these objections based on the information provided by GECOM to the party agents, signalled the possibility of a padded voters list which GECOM as a body must deal with expeditiously.
The trio said they have no evidence as to who were the ultimate beneficiaries of the alleged “ghost voting” and voter impersonation.