By Feona Morrison
The idea of a national recount of all ballots cast in the March 02, 2020 General and Regional elections came after the results for Region 4 were deemed non-credible by foreign and local observer groups and party agents. The Region’s Returning Officer, Clairmont Mingo had come under harsh criticism for his declaration, which did not match the figures on the Statements of Poll in the possession of observers and party agents.
However, the Guyana Election Commission (GECOM) before embarking on the Recount exercise did not set aside the declarations made by Mingo, and the nine other Returning Officers. Instead, the electoral body said that the figures from these declarations are being “held in abeyance”, in a state of temporary disuse or suspension.
It is against this backdrop that Georgetown resident, Eslyn David, who has been described as an “APNU proxy” is arguing that there is nothing preventing GECOM from using the figures from those declarations to declare a winner of the elections. Basically, she is asking that the votes tabulated during the recount be scrapped and that GECOM revert to the declarations by the Returning Officers as a basis for a final declaration.
The figures from those declarations would give incumbent President David Granger a victory, and a second term in office. But, based on the figures coming out from the Recount, People’s Progressive Party Civic (PPP/C) Presidential Candidate Irfaan Ali will be sworn in as Guyana’s ninth President.
Contending that the votes tabulated and certified during the Recount, and by extension the elections lack credibility, David has mounted a Notice of Motion at the Court of Appeal where she is asking for a Declaration that GECOM failed to determine a final credible count of the votes from the Recount exercise that was scrutinized by a three-member CARICOM team.
Apart from the Declaration, she is also seeking 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 from the Recount that are not valid and credible.
Article 177 of the Constitution speaks specifically to the Election of the President, while Section 96 of the Representation of the People Act outlines the methodology for the allocation of seats in the 65-member National Assembly.
Through her lawyers, Mayo Robertson and others, David argues that GECOM, in issuing the Order for the Recount, did not set aside the declarations made by the 10 Returning Officers, and that these very declarations are still valid. In fact, she argues, too, that pursuant to Section 84 (2) of the Representation of the People Act, which speaks to the counting of votes polled, these declarations are final.
Robertson, in written submissions to the Court of Appeal, therefore said, “It is submitted that Order No. 60 of 2020 [the Recount Order] did not affect Sections 84 (2)and 96 of the Representation of the People Act and consequently the Chief Elections Officer is required to act only in accordance with Section 96 of the Representation of the People Act to submit a report under that Section.”
The Recount Order is attached here: https://officialgazette.gov.gy/images/gazette2020/may/Extra_4MAY2020Ord60of2020.pdf
Under Paragraph 12 of the Recount Order, it specifically states that the matrices for the Recount of the 10 Electoral Districts shall be tabulated by the Chief Elections Officer, and shall be submitted in a report, together with a summary of the observations reports for each District to the Commission.
However, Robertson is telling the Court of Appeal that the determination by Justice Singh under Paragraph 14 of the Recount Order, that the data compiled in accordance with Paragraph 12 of the Order be used as the basis for the Chief Election’s Officer’s report, is “invalid.”
Paragraph 14 of the Recount Order states: “The Commission shall, after deliberating on the report at Paragraph 11 [of the Recount Order], determine whether it should request the Chief Elections Officer to use the data compiled in accordance with Paragraph 11 as the basis for the submission of a report under Section 96 of the Representation of the People Act.”
Relying on the case of Reeaz Hollader V Returning Officer, Clairmont Mingo and others , Robertson submitted to the Court of Appeal that on March 11, 2020, Chief Justice Roxane George nullified the declaration made by Mingo on March 05, 2020, as it relates to the votes cast for Electoral District 4, and ordered him to comply with the applicable law in ascertaining those votes.
The lawyer, therefore, contends that Section 96 of the Representation of the People Act is valid and extant and cannot be said to have been amended or modified. In light of the foregoing, Robertson further submitted that valid votes within the meaning of Section 96 of the aforesaid Act are votes which were ascertained by the Chief Elections Officer on the basis of votes counted and the information furnished by the Returning Officers.
“It is submitted that Order No. 60 of 2020 is inapplicable to Article 177 (2) (b) of the Constitution. The Order does not seek to affect it in any way,” Robertson added. He concluded, “It is submitted that under Article 177(2) (b) of the Constitution of Guyana, the Chief Election Officer is empowered to determine valid votes cast in respect of the election of a President and to tender such advice to the Guyana Elections Commission.”