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A supporter of the APNU+AFC Coalition has filed an application in the High Court seeking a number of orders including blocking any declaration of the March 2, 2020 elections using the data from the National recount.
The application was filed by attorney Mayo Robertson and was sworn to by Tucville, Georgetown resident, Misenga Jones. GECOM was slated to meet around 14:30hrs on Tuesday to receive a report by the Chief Elections Officer on the elections. Chairman of GECOM, Justice Claudette Singh had said on Monday that should the CEO fails to submit a report based on the recount results she would be forced to ask his deputy, Roxanne Myers to produce the report. The meeting was postponed due to the court matter which is slated to be heard Wednesday morning by the Chief Justice, Roxane George.
Jones in her application is seeking: a declaration that the High Court has jurisdiction to hear the application on the basis of prima facie evidence that there has been non-compliance by the Guyana Elections Commission and the Chairman of the Guyana Elections Commission in that they have not complied with the constitutionally stated process as outlined in Article 177(2)(b) of the Constitution with regard to the March 2, 2020 General and Regional Elections.
Additionally, Jones is asking the court to declare that the Chair of GECOM has failed to act in accordance with the advice of the Chief Election Officer as mandated by Article 177(2)(b) of the Constitution of Guyana in that she has failed to declare the Presidential candidate deemed to be elected as President in accordance with the advice tended in the report by the Chief Elections Officer dated the 11th day of July 2020. Also Jones is seeking a declaration that respondents and in particular the Guyana Elections Commission (GECOM) have no authority to declare any person as President except in accordance with the advice of the Chief Election Officer tended in his report pursuant to Section 96(1) of the Representation Act.
She also is asking the court to declare that GECOM has no authority to declare any person as President except in accordance with the advice of the Chief Election Officer tendered in his report pursuant to Article 177(2)(b) of the Constitution of Guyana. Jones is also contending that a report required by the Chief Election Officer under Section 96 of the Representation of the People Act must be based on the votes counted and information furnished by the ten (10) Returning Officers from their respective ten (10) Electoral Districts which were submitted to the Chief Election Officer on the 13th day of March, 2020.
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See below the full application of Ms Jones
APPLICATION The Applicant makes application for: (i) A Declaration that this Court has jurisdiction to hear this Application on the basis of prima facie evidence that there has been noncompliance by the Guyana Elections Commission and the Chairman of the Guyana Elections Commission in that they have not complied with the constitutionally stated process as outlined in Article 177(2)(b) of the Constitution with regard to the March 2, 2020 General and Regional Elections. (ii) A Declaration that the Chair of the Guyana Elections Commission (GECOM) has failed to act in accordance with the advice of the Chief Election Officer as mandated by Article 177(2)(b) of the Constitution of Guyana in that she has failed to declare the Presidential candidate deemed to be elected as President in accordance with the advice tended in the report by the Chief Elections Officer dated the 11th day of July 2020.
(iii) A Declaration that the Respondents and in particular the Guyana Elections Commission (GECOM) have no authority to declare any person as President except in accordance with the advice of the Chief Election Officer tended in his report pursuant to Section 96(1) of the Representation Act. (iv) A Declaration that the Respondents and in particular the Guyana Elections Commission (GECOM) have no authority to declare any person as President except in accordance with the advice of the Chief Election Officer tended in his report pursuant to Article 177(2)(b) of the Constitution of Guyana.
(v) A Declaration that the report required by the Chief Election Officer under Section 96 of the Representation of the People Act must be based on the votes counted and information furnished by the ten (10) Returning Officers from their respective ten (10) Electoral Districts which were submitted to the Chief Election Officer on the 13th day of March, 2020. (vi) A Declaration that the Chief Election Officer is not entitled to base his report required by Section 96 of the Representation of the People Act on data generated from the recount purported to be carried out under Order No. 60 of 2020.
(vii) A Declaration that the votes counted at the National Recount pursuant to Order No. 60 of 2020 as amended, are invalid for failure to conform with the concept of valid votes described by the CCJ in its Judgement in the Appeal of Ali and Jagdeo v David, et al [2020] 10 (AJ) GY. (viii) A Declaration that data generated from the recount purportedly conducted under Order No. 60 of 2020 is generated by an unconstitutional process in that the Order requires decisions on validity of ballots that by Article 163(1)(b) are the exclusive province of the High Court. (ix) A Declaration that the votes counted and information furnished by the Returning Officers of the ten (10) Electoral Districts on March 13, 2020 contain the votes that are ex facie valid in that they were tabulated in the presence of, inter alia, the duly appointed candidates and counting agents of contesting parties and, as such, are properly the valid votes contemplated by Section 96(1) of the Representation of the People Act. (x) A Declaration that the Chief Election Officer is not subject to the direction of either the Chairman or GECOM in the content of the advice he is required to furnish under Article 177(2)(b) of the Constitution of Guyana.
(xi) A Declaration that any instruction from the Chairman of GECOM purporting to direct the Chief Election Officer as to the content of the report he furnishes under Section 96(1) of the Representation of the People Act, is unlawful, void, and of no effect. (xii) A Declaration that letters from the Chairman of GECOM on June 13th , July 9th , and July 10 th 2020 purporting to direct the Chief Election Officer as to the content of his advice and report under Article 177(2)(b) and Section 96(1) of the Representation of the People Act respectively, are unlawful, constitutional, void, and of no effect. (xiii) A Declaration that in particular the letter of July 9th 2020 citing Section 18 of the Election Laws (Amendment) Act No 15 of 2000 as authority that the Chief Election Officer was subject to the supervision and control of GECOM is misguided, invalid, and has no application to the Chief Election Officer in the performance of his duties under Article 177(2)(b) of the Constitution and Section 96(1) of the Representation of the People Act. (xiv) A Declaration that any challenge to the advice of the Chief Election Officer furnished in his report to GECOM on July 11th, 2020 can be challenged only in accordance with the provisions of Article 163 of the Constitution of Guyana, in an Election Petition Court. (xv) A Declaration that the Commission does not have the constitutional authority to alter the advice contained in the report submitted by the Chief Election Officer in accordance with Article 177(2)(b) of the Constitution of Guyana and Section 96(1) of the Representation of the People Act. (xvi) A Declaration that GECOM is obligated to accept the advice of the Chief Election Officer tendered in his report submitted on June 11th 2020.
(xvii) A Declaration that neither the Chairman nor the Commission is entitled to alter the votes counted and information forwarded by the ten (10) Returning Officers to the Chief Election Officer in accordance with Section 84 of the Representation of the People Act. (xviii) A Declaration that Section 22 of the Election Laws (Amendment) Act No. 15 of 2000 is unconstitutional in that it violates the separation of powers and impermissibly usurps the legislative powers of Parliament (xix) A Declaration that the Declarations made by the Returning Officers of the ten Electoral Districts of the votes cast by the Electors in the Electoral Districts and or Electoral Returns are final and cannot be set aside, varied and or altered by the Respondents. (xx) A Declaration that the Declarations of the respective Returning Officers for each Polling District after compliance with section 84 of the Representation of the People Act, of the votes cast by Electors in favour of the Lists of Candidates in Electoral Districts 1 to 10 are the Final Declarations of the votes cast by the Electors in favour of a List of Candidates in Electoral Districts 1 to 10.
(xxi) A Declaration that the Declarations of the respective Returning Officers of Electoral Districts 1 to 10 of votes cast by Electors in favour of the Lists of Candidates in the respective Districts at the General and Regional Elections held on March 2, 2020 made on or before the 14th day of March, 2020, are the sole legal basis for the Chief Elections Officer’s Report to the Chairman of the Guyana Elections Commission and the Guyana Elections Commission pursuant to section 99 of the Representation of the People Act and the Chief Elections Officer’s advice tendered under Article 177 of the Constitution of Guyana (xxii) An Order restraining the Guyana Elections Commission from acting in any manner not consistent with the mandate set out in Article 177(2)(b) and Section 96 of the Representation of the People Act with respect to the advice and report of the Chief Election Officer tendered on July 11th 2020.
(xxiii) An Order restraining the Chief Election Officer from acting in any manner inconsistent with the mandate contained in Article 177(2)(b) of the Constitution of Guyana and Section 96 of the Representation of the People Act in the performance of his duty to submit a report containing his advice to the Guyana Elections Commission. (xxiv) An Order restraining the Second Respondent whether by herself, her servants or agents, from acting in any manner inconsistent with the provisions of Article 177(2)(b) of the Constitution of Guyana as it relates to declaring a person deemed to be President. (xxv) An Order restraining from taking the oath of office as President of Guyana any person identified as the Presidential candidate in the list of parties contesting the elections, other than the Presidential candidate in the list which the Chief Election Officer advised in his report to GECOM on July 11, 2020 to be the list in favor of which more votes were cast. (xxvi) An Order setting aside the decision of the Commission not to accept the advice of the Chief Elections Officer as contained in his report dated July 10th 2020, furnished in accordance with Article 177(2)(b) of the Constitution of Guyana and Section 96(1) of the Representation of the People Act. (xxvii) An Order setting aside the decision of the Commission purporting to invalidate the votes counted and information furnished by the ten (10) Returning Officers to the Chief Election Officer in accordance with Section 84 of the Representation of the People Act. (xxviii)Such further or other Orders as this Honorable Court may deem just. (xxix) Costs 2. THE GROUNDS FOR THIS APPLICATION ARE: – (i) The Applicant is a citizen of Guyana, a Registered voter in Electoral District No. 4 and was duly qualified to vote and voted at the Last General and Regional Elections held in Guyana on the 2nd day of March 2020, at Tucville Primary School (ii) National and Regional Elections were held in the Co-operative Republic of Guyana on the 2nd day of March 2020 during which registered voters within the ten (10) Electoral Districts cast their votes. (iii) The said votes were counted and tallied in accordance with the Representation of the People Act, Chapter 1:03, Laws of Guyana.
(iv)Judicial Review proceedings were instituted against the Returning Officer of District 4, Mr. Clairmont Mingo after he had purported to issue a Declaration with respect to that District in accordance with Section 84 of the Representation of the People Act, Chapter 1:03, Laws of Guyana. (v) Certain orders were made by the Honourable Madam Chief Justice in the said application that occasioned the recounting of the votes on the Statement of Polls held by Mr. Clairmont Mingo for District No. 4 and a subsequent declaration was made on the 13th day of March, 2020 and which declaration has not been challenged. (vi) Applications for recounts made of the Returning Officers of several Electoral Districts were refused for varying reasons and all Declarations were forwarded by the various Returning Officers to the Chief Election Officer in accordance with Section 89(1)(f) of the Representation of the People Act, Chapter 1:03. (vii) Pursuant to section 96 (2) of the Representation of the People Act, Chapter 1:03, the Chief Election Officer after calculating the total number of valid votes of electors which had been cast, prepared his report in accordance with Subsection 96(2) for the benefit of GECOM and furnished GECOM with the same.
(viii) Pursuant to an agreement between the President and the Leader of the Opposition and brokered by the Chairman of CARICOM a recount was undertaken on or about March 17th, 2020. However, that process was aborted after this Honorable Court on the Application of Ulita Grace Moore granted an Injunction restraining any purported recount from being carried out under the supervision of CARICOM. (ix) After the Court of Appeal in the case of Ulita Grace Moore vs GECOM, et al, declared that any agreement giving any person or entity other than GECOM supervisory authority over any aspect of the election would be unconstitutional, Order No. 60 of 2020 was issued by GECOM authorizing a recount in which GECOM would retain supervisory authority.
(x) That Order in its 8th (eighth) recital made detailed provisions for assessing the validity of ballots during the recount process. (xi) On July 8, 2020 the Caribbean Court of Justice (CCJ) in their decision of in Jagdeo Appeal No 41 of 2020, declared that Order No. 60 could not create a new election regime and that any extra steps included in that Order to ascertain validity of votes are unconstitutional. (xii) The Court further declared that validity means, and could only mean, those votes that, ex facie, are valid. Determination of such validity is a transparent exercise conducted in the presence of, inter alia, the duly appointed candidates and counting agents of contested parties. (xiii) After votes were duly cast in the General and Regional Elections of 2020 votes were tabulated, and spoiled and rejected ballots were removed in the presence of counting agents and representatives of the political parties by Returning Officers as required by Section 84 of the Representation of the People Act and a return in writing was issued by each of the ten (10) Returning Officers in accordance with Section 89(1)(f) of The Representation of the People Act. (xiv) Based on returns received from the Returning Officers of the ten (10) Electoral Districts the Chief Election Officer calculated the total number of valid votes and prepared a report as required by Section 96 of the Representation of the People Act.
(xv) That report was furnished to the Chairman on or about the 13th day of March, 2020 and GECOM at a meeting shortly thereafter in March, 2020 decided to hold the report in abeyance because complaints had arisen concerning purported improper acts by Returning Officer Mingo which resulted in judicial review proceedings described above and out of which arose the undertaking for the recount described above. (xvi) At no time were the returns by the Returning Officers of the ten (10) districts set aside or invalidated by any Court or competent authority. (xvii) By its decision in the Ali, Jagdeo Appeal, the Caribbean Court of Justice (CCJ) effectively invalidated any report generated by the recount process as being useable in the tabulation of valid votes. (xviii) In paragraph 46 of its judgment the Caribbean Court of Justice (CCJ) makes it clear that it is only an Election Court that can make any further determination of valid votes once the Returning Officers have submitted their returns to the Chief Election Officer.
(xix) The only process that meets the criteria by which the tabulation of valid votes could be made by the Chief Election Officer as required by Section 96 of the Representation of the People Act, is the process contained in the returns of the ten (10) Returning Officers furnished to the Chief Election Officer on or about the 13th day of March, 2020. (xx) Article 177(2)(b) of the Constitution of Guyana requires a meeting of GECOM be summoned so that it may act in accordance with the advice of the Chief Election Officer in the declaration of presidential candidate deemed to be elected as President.
(xxi) The Chief Election Officer has calculated the total number of valid votes cast for each list of candidates as is required by Section 96 of the Representation of the People Act and has furnished his advice based on such calculation to the Chairman and each individual member of GECOM. (xxii) GECOM has to date failed to act on the advice of the Chief Election Officer as it is constitutionally required to do by Article 177(2)(b) of the Constitution of Guyana. (xxiii) By letters dated July 9 th , 10th and 13th 2020. the Chairman of GECOM purported to instruct the Chief Election Officer as to the contents of the advice he is required to furnish to GECOM in accordance with Article 177(2)(b) of the Constitution of Guyana.
That letter impermissibly directs the Chief Election Officer to prepare his report required by Section 96 of the Representation of the People Act “using the valid votes counted in the National Recount as per Certificate of Recount generated there from”. (xxiv) Such an instruction not only violates the principle that the Chief Election Officer should act independently in compiling his Section 96 report, but it also is in direct conflict with the decision of the Caribbean Court of Justice (CCJ ) in the Ali, Jagdeo Appeal where the Court makes it clear that Order No. 60 of 2020 could not introduce additional requirements of credibility . (xxv) Recital No. 8 of Order No. 60 of 2020 introduces such prohibited new grounds and prohibited grounds were used in calculating valid votes in the National Recount. (xxvi) In any event Order 60 of 2020 was issued under the purported authority of Section 22 of the Election Laws ( Amendment) Act which section is flagrantly unconstitutional in that it violates the principle of Separation of Powers and impermissibly usurps the legislative function of Parliament. As such any order issued under Section 22 is ipso facto unconstitutional and void. (xxvii) Similarly, any Recount purportedly carried out under Section 222 is unconstitutional void and of no effect. (xxviii)At a meeting of the GECOM held on July 13, 2020 the Commission in violation of Article 177(2)(b) of the Constitution of Guyana and in violation of the Representation of the People Act refused to accept the advice of the Chief Election Officer tendered to the Commission on July 11, 2020. (xxix) At the said meeting on July 13th 2020 Gecom unconstitutionally purported to invalidate the votes counted and information furnished to the Chief Election Officer by the returning officers of the 10 Electoral Districts. (xxx) Members of the Commission nominated by the Peoples Progressive Party/Civic have made public statements that they would not accept and act on the advice furnished by the Chief Election Officer in his report made pursuant to Article 177(2)(b) of the Constitution of Guyana and Section 96(1) of the Representation of the People Act. 3. The following documentary evidence will be used at the hearing of the application: – (i)
Affidavit of Misenga Jones with exhibits
MAYO ROBERTSON Attorney-at-law
