By Feona Morrison
Presidential Candidate of the People’s Progressive Party Civic (PPP/C), Irfan Ali, and the party’s General Secretary, Bharrat Jagdeo have told the Court of Appeal that there is absolutely no evidence by “APNU proxy” Sophia resident, Eslyn David to support that the votes tabulated and certified during the recount of all ballots cast in the March 02, 2020 General and Regional Elections, were not valid and credible.
Ali and Jagdeo were yesterday added as Respondents in the Notice of Motion mounted by David, who among other things, is asking the Court of Appeal to make a declaration that the Guyana Elections Commission (GECOM) failed to determine a final credible count of the votes. In light of the foregoing, she argues that GECOM also 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.
Ali and Jagdeo, through a battery of lawyers, led by Trinidad and Tobago Senior Counsel, Douglas Mendes, have outright rejected David’s arguments on the basis that there is simply no evidence to that effect in her application upon which the court could make any such determination.
Apart from the declaration, David, through her lawyer, Mayo Robertson, also wants the court to grant an Order restraining Chief Elections Officer (CEO), Keith Lowenfield from submitting any report to Chairman of GECOM, retired Judge, Claudette Singh, pursuant to Article 177 (2) (b) of the Constitution or under Section 96 of the Representation of the People Act, which contains votes that are not valid and credible.
In analyzing the evidence proffered by David, Senior Counsel Mendes has respectfully submitted to the Court of Appeal that “this test of validity and credibility which is not found in the Constitution, cannot be met on the basis of the evidence which David has placed before the court.”
According to the Senior Counsel, “Ms. David, acting as a proxy for the APNU has duly placed some (but not all it seems) of the objections which the APNU had lodged with GECOM through its election agent Mr. [Joseph] Harmon…” Furthermore, Senior Counsel Mendes submitted that while David references the report of Lowenfield which also lists various complaints he had apparently observed, none of this is evidence of invalidity.
It is evidence only of the views and opinions which certain persons hold, Senior Counsel Mendes noted in his written submissions to the court. Moreover, he argues that it is impossible for the Court of Appeal, receiving evidence in such a summary fashion, to make any sort of determination as to whether any invalidity occurred.
“In the previous section we set out, at length, the exhaustive statutory machinery which is established for such complaints to be resolved by the High Court. That machinery cannot, as matter of law, be by-passed, and cannot as matter of sheer practicality be duplicated by the Court of Appeal which is simply not equipped to conduct such a trial,” Senior Counsel Mendes further submitted.
In essence, the Senior Counsel is contending that the Court of Appeal does not have the jurisdiction to hear the case.
What is noteworthy, he says, is that Lowenfield did not raise any of these myriad concerns prior to the recount of all votes when he was prepared to ascertain that the APNU had been victorious as a result of the actions of Region 4’s Returning Officer, Clairmont Mingo “which constituted a brazen attempt to steal the elections.”
In fact, Senior Counsel Mendes concluded that at that time, the outcry of the international observers helped to force a recount, and now that the recount has been conducted, and the international observers have approved the process, and the APNU has not been victorious, Lowenfield has suddenly, and dramatically changed his position.
In summing up, Senior Counsel Mendes held that the Notice of Motion should be dismissed as there is no jurisdiction to entertain it. He said the grounds upon which the Motion was made are all without merit and invite the Court of Appeal to fall into serious constitutional error.
“Every complaint which has been raised are [sic] capable of being addressed in an election petition which will ultimately be subject to the oversight of this Court of Appeal,” the Senior Counsel put forward on behalf of Ali and Jagdeo.