APNU+AFC optimistic of election petition case 

…maintains that an agreement between political parties cannot supersede Constitution, ROPA  

With the Chief Justice (ag), Roxane George set to rule in the Election Petition Case challenging the results of the 2020 General and Regional Elections as declared by the Guyana Elections Commission (GECOM) in August 2020, the A Partnership for National Unity + Alliance For Change (APNU+AFC) is optimistic that the High Court will rule in its favour. The judgement will be handed down on April 26 at 11:00hrs.

“I am very much optimistic. For one thing, we are very pleased at the pace at which things are moving, and we believe that we have a set of facts and laws that are very much in our favour and I believe that people looking on will be satisfied that at the end of the day, we have established that things were sufficiently non-compliant, that the results of the election could not be relied upon, as being truly reflective of the will of the people,” Attorney-at-Law Mayo Robertson.

Robertson, who is among attorneys representing the petitioners in the case – Claudette Thorne and Heston Bostwick vs. the Chief Elections Officer (CEO) and others – at the time, was speaking during the virtual programme “Politics 101” hosted by Political Scientist, Dr. David Hinds, on popular social media platform Facebook on Thursday.

After five months of an electoral impasse that was consumed by legal proceedings and allegations of widespread fraud, People’s Progressive Party/Civic (PPP/C) Presidential Candidate, Irfaan Ali was declared President of Guyana on August 2, 2020. Based on the results as declared by GECOM, the PPP/C secured 233,336 votes in the General Elections to win the Presidency. According to GECOM, APNU+AFC had only secured 217,920 votes.

But the petitioners in the case, through their battery of lawyers, have argue that the results of the elections are null, void and of no effect on the grounds that the results were declared based on data coming out of a National Recount and not the declarations made by the 10 Returning Officers as stipulated by the Representation of the People Act (ROPA).

Faced with a number of legal challenges, GECOM had relied on Section 22 of the Elections Laws (Amendment) Act to bring Order 60 (Recount Order) into effect but the petitioners have contended Section 22 of the Elections Law (Amendment) Act is unconstitutional, and by extension Order 60.

Section 22 of the Election Laws (Amendment) Act provides that:”(1) If any difficulty arises in connection with the application of this Act, the Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the Commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the Commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the Commission to be necessary or expedient for removing the difficulty.”

But the Petitioners, through their attorneys, submitted to the Court that only Parliament could amended the Laws of Guyana. The Court was also reminded that the Constitution is the supreme law of land and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void. Against this background, it was submitted that only an Election Court could set aside the results of the Elections by way of an Election Petition, in accordance with Article 163 of the Constitution.

Leader of the Alliance For Change (AFC) and Attorney-at-Law Khemraj Ramjattan, who formed part of the panel discussion on Politics 101, told Dr. Hinds that the Laws of Guyana do not provide for the conduct of a National Recount, and therefore, it was not within the remit of the Elections Commission to set aside the 10 Declarations made by the Returning Officers (ROs).

“We have a certain statutory and constitutional regime as to how it should be conducted; and though there was an agreement to hold this recount, an agreement by parties cannot whittle away laws of a country,” Ramjatttan said.

To support his position, Ramjattan referenced to the 1998 Esther Perreira Case, in which Perreira – a People’s National Congress (PNC) supporter – challenged the validity of the 1997 Elections on the grounds that the provision made under the Elections Laws (Amendment) Act stipulating that a voter must produce a Voter Identification Card in order to vote, was unconstitutional. On January 16, 2001, Justice Claudette Singh, as she then was, ruled in Perreira’s favour, and vitiated the Elections. Singh, now retired, is currently the Chairman of GECOM.

“Justice Claudette Singh ruled that though the parties [PPP/C and PNC] agreed to this in 1997, and also notwithstanding that they passed a law allowing this, the Constitution was violated because that supreme law never provided for this.

Similarly, although it was agreed in 2020 that a recount be done by all the parties and CARICOM after the disputed numbers, the Constitution nor any Statue never provided for a declaration by recount. It is a purely legalistic point, and it was only by the Returns of the 10 Returning Officers that you ought to declare the results,” Ramjattan submitted.

Senior Counsel Roysdale Forde, who formed part of the panel discussion and who is among attorneys representing the petitioners, iterated that GECOM could not assumed the powers of the Judiciary, and set aside the declarations of the Returning Officers.

“This is a very dangerous development, that you can have an election commission, who decides after the election is completed, who decides without the intervention and oversight of anybody to change the rules to determine how it should go, to determine what should be a valid vote, what will not be a valid vote, who should have voted, how we will count the ballots. That is a very dangerous development,” the Senior Counsel said.

During last Wednesday’s closing argument before the Chief Justice, GECOM’s Attorney, Senior Counsel Anthony Astaphan told the High Court that the Elections Commission acted in accordance with Section 22 of the Elections Laws (Amendment) Act, which sets the foundation for the Election Commission to address difficulties arising during an election.  

Further, Astaphan submitted that the Caribbean Court of Justice (CCJ), in its 2020 ruling, had ratified directly or indirectly the purpose, motive and lawfulness of Order 60 for the purpose of removing “the difficulties which were slowly but surely driving Guyana into a series of severe social and political upheaval.”