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The Declarations made by the 10 Returning Officers (ROs) during the early stages of the 2020 General and Regional Elections could not have been set aside by the Guyana Elections Commission (GECOM), the battery of lawyers representing the petitioners in the case- Claudette Thorne and Heston Bostwick vs. the Chief Elections Officer and others – have argued.
In their written submission to the Court on Friday, the team of legal luminaries led by Trinidad and Tobago’s Senior Counsel John Jeremie and Guyana’s Senior Counsel Roysdale Forde, argued that the decision by the Elections Commission to set aside the results of the elections as declared by the ROs, and its subsequent reliance on data coming out of the National Recount constitute a breach of the Representation of the People Act.
Days after more than 450,000 Guyanese went to the polls on March 2, 2020, the 10 Returning Officers declared the results of the elections based on votes tabulated in the various regions, with the last declaration made by the Region Four (Demerara-Mahaica) Returning Officer Clairmont Mingo in accordance with the orders of the court.
Those declarations were followed by a compilation of the results and the submission of a report by the Chief Elections Officer (CEO) Keith Lowenfield to the Elections Commission in accordance with Section 96 of the Representation of the People Act.
That report showed that the A Partnership for National Unity + Alliance For Change (APNU+AFC) won the Elections, however, the report, as compiled by the CEO on March 13, was placed in abeyance and subsequently scrapped by the Elections Commission as it opted to rely on the data coming of a National Recount for the results of the highly controversial and contested Elections.
But the attorneys argued that GECOM’s reliance on Section 22 of the Election Law (Amendment) Act to bring Order No. 60 into effect constituted a breach of both the Constitution and the Representation of the People Act.
“It is submitted that the Order 60 process that allowed for new Declarations to be made is ultra vires the electoral regime governing elections in Guyana,” the battery of lawyers said. They called the Court’s attention to the fact that the application of Section 22 by the Elections Commission to conduct a recount related to substantive issues for an election court.
“Order 60 established an unconstitutional dispute resolution process that is contrary to the Representation of the People Act which excluded the statutory officers, that is to say, the Returning Officers from the recount process and declaration of the counts. None of the documents (inclusive of the Statement of Recount and the Certificate of Recount) used in the recount process were gazetted documents and were not required or permitted by the Representation of the People Act to be used to supersede already validly made declarations so as to be used for the declaration of results of the elections under section 96 of the Representation of the People Act,” Jeremie and team argued.
Section 84 of the Representation of the People Act is clear, the lawyers said, while reminding the Court that the Law states that only the Returning Officers are empowered to declare the results of respective electoral districts. Further, Section 96 mandates that the CEO is to consider these declarations in the preparation of his report under that section.
“Order 60 cannot bring about a new legal regime for the basis of the declaration of the votes. Order 60 could not have brought about a new legal electoral regime, especially well after the election had been held,” they argued while pointing to the CCJ case Ali v David [2020).
In that case, the CCJ stated that “…an Order issued by GECOM in any particular context can never determine how the Constitution is to be interpreted. It is a matter of elementary constitutional law that if ordinary legislation is in tension with the Constitution, then the courts must give precedence to the words of the Constitution and not the other way around. With respect, the notion that Order 60 could either impact interpretation of the Constitution or create a new election regime at variance with the plain words of the Constitution is constitutionally unacceptable.”
They submitted that GECOM deviated from the clear process set out for the declaration of results, and in doing so erred.
“Order 60 could not have been lawfully used to invalidate the already validly made declaration nor could the Chair and/or the Guyana Elections Commission act as an imperio imperium and unilaterally invalidate declarations. That was something only this Honourable Court pursuant to its powers under Article 163 was empowered to do,” Jeremie and team argued.
In support of their arguments, the battery of lawyers relied on cases such as: West v Groynne, Smith v Callande, and Bennion On Statutory Interpretation, 6th Edition.
The Attorneys argued that Section 22 is not curative or corrective in nature, and therefore could not have conferred power on the Elections Commission to correct, rectify, set aside or vary any act or transaction undertaken and completed in the elections process.
“Again, that process intruded and trampled upon the exclusive jurisdiction of this Honourable Court under Article 163 of the Constitution to adjudicate on acts or omissions which would have taken place during the elections process,” the legal team submitted.
The petitioners – Thorne and Heston Bostwick – are hoping to have the court’s nullify the results of the March 2 General and Regional Elections as declared by GECOM on August 2.