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…but leaders back appeal, say ruling set dangerous precedent
By Svetlana Marshall
Warning that the latest ruling on the election petitions filed by the A Partnership for National Unity + Alliance For Change (APNU+AFC) could have serious repercussions for future elections, several political activists have endorsed the decision to appeal Chief Justice (ag) Roxane George’s ruling, which they say has effectively legitimises the holding of a National Recount even after the submission of an Election Report by a chief elections officer.
“Such a move could result in “chaos every five years,” former PNCR Member of Parliament, Lurlene Nestor told Village Voice Newspaper in an interview. In dismissing Election Petition 88 on Monday, April 26, the Chief Justice (ag) ruled that there is nothing unconstitutional about Section 22 of the Election Laws (Amendment) Act and Order 60 (Recount Order), which were relied upon by the Guyana Elections Commission (GECOM) to facilitate a national recount of the votes cast at the March, 2020 General and Regional Elections.
The ruling dealt another blow to the coalition’s efforts to overturn the declared results of the March 2, 2020 polls that was plagued with discrepancies based on the evidence unearthed during the very national recount. Nestor believes that the ruling paves the way for future elections to be very precarious. “Clearly, the recount was one of the most ill-advised, chaotic and destructive arrangement undertaken in the March 2, 2020 election. The court giving it legitimacy has invited the chaos every five years. So, Guyanese can now imagine every party, regardless of how insignificant they may be, to request a recount of the total votes before any winner can be announced. Clearly, this is likely to invite many months of disruption and chaos in the nation,” Nestor told Village Voice News.
That aside, Nestor said the Court legitimised the National Recount, although it was not conducted in accordance with the gazetted Order (Order 60), which brought it into effect. Senior Counsel Roysdale, who was the lead counsel representing the petitioners, also expressed similar views during his appearance on a virtual programme called “Politics 101” one day after the ruling.
“The ruling has given effect, and given life to the possibility that what happened in the Elections of 2020, the conduct of GECOM is now lawful and can be repeated at every single election ranging from Local Government Elections to National and Regional Elections,” Forde posited. Notwithstanding the ruling of the Court, the Senior Counsel maintained that GECOM, in facilitating the National Recount, usurped the authority the of the Court, which according to Article 163 of the Constitution, has exclusive jurisdiction to determine any question regarding the lawful conduction of an election.
“It is very bizarre to have a situation where an Election Commission…do all the work that is necessary for the Court, come to a conclusion, make decisions, change the validity of the process to be employed and in so doing, even change the validity of votes, the process for counting votes,” Forde opined.
MUCH TO BE DESIRED
Executive members of the Working People’s Alliance Dr David Hinds and PNCR, member James Bond said the coalition could have done better in the filing of the Election Petition, particularly in the case of Petition 99, which was dismissed during the preliminary stage in January, 2021 on the basis of a technical error.
Chief Justice (ag) George, in nullifying Petition 99, ruled that there was noncompliance of service on the Second Named Respondent – David Granger – who she concluded was a proper and necessary party to the petition. “Realising that the gravity of their obvious error, and having it pointed out by the Court on October 22, 2020, the petitioners have sought to correct this error and have failed miserably. The evidence produced is manifestly unreliable and cannot be acted on to prove that the Second Respondent was served on September 18, 2020,” the Chief Justice (ag) said as she handed down her ruling. In the case of Petition 88, the Chief Justice (ag) said the petitioners failed to provide evidence that GECOM did not abide by Order 60 when it declared the results of the elections on August 2, 2020.
Bond opined that APNU+AFC fell down in its handling of the technical aspects of the petitions – missteps he believes have the cost the party dearly. “We should have ensured that we did our ultimate best in terms of fulfilling all of the procedural obligations, all of the statutory obligations in relation to the filing of the matter, in relation to the presentation of the matter, and ensure that the meat of the matter got fleshed out in the courts,” he posited.
Dr. Hinds also submitted that better could have been done but said given the seriousness of the matter, the Court should have allowed the Petition 99 to be heard in full. “There was indeed a level of sloppiness by the Coalition in the preparatory stage of the petition. But that was not enough to warrant the dismissal of one of the petitions. While the court stuck to the letter of the law, one would have thought that given the extreme importance of the matter, there was need to move beyond the letter and reach for the spirit of the law,” Dr. Hinds said.
For Nestor, the decision of the Court to nullify Petition 99 on the basis of a technical error was “unconscionable.”
“On the issue of the first elections petition being dismissed for want of “correct serving time” I find this specific ruling unconscionable owing to the serious nature of the issue to be addressed by the petition. I am not excusing the plaintiff’s supposedly lack of due diligence to file petition on time. They cannot be excused. However, I cannot support the decision to throw out such an important case for mere “filing serving date non-compliance”. This was an issue so minute that discretion could have been used to allow for the issue to be remedied. A case of such broad national implication, in my view ought not to have been dismissed for such frivolous reason,” Nestor reasoned, as she, like Dr. Hinds and Bond endorsed the decision to appeal both decisions.
Anil Nandlall, the Attorney General, in praising the ruling of the Chief Justice (ag), said the coalition ought not to have filed Petition 88 and or Petition 99, which was earlier dismissed, on the basis that GECOM acted within the confines of the Constitution to remove difficulties that arose during the elections.
“When these petitions were filed, any competent lawyer and any reasonably minded human being, having observed the electoral process would know that these petitions had very little likelihood of success; any person who had a rational mind would have concluded that; yet when they were filed they had a big commotion in front of the High Court, and announced to the whole world, including their supporters that these are the petitions that would bring the PPP down and that the PPP would be ousted from office by these petitions…knowing full well that neither of them had any reasonable prospect of success,” the Attorney General said in a recorded interview released shortly after the High Court ruling .
But Nestor said APNU+AFC had every right to file the Election Petitions.
Election Petition 88 – Claudette Thorne and Heston Bostwick v the Chief Elections Officer – challenged the constitutionality of Section 22 of the Election Laws (Amendment Act) and Order 60, while Election Petition 99 – Monica Thomas and Brennan Nurse vs. the Chief Elections Officer and others – sought to vitiate the results of the 2020 General and Regional Elections on the grounds that the Guyana Elections Commission (GECOM) failed to conduct free and fair elections in keeping with its constitutional requirements.
“The 2020 election was a special case of serious elections issues, which undoubtedly has left more than half of the country questioning its validity. Firstly, the entire process of the election was disrupted, and compromised after there was a massive breach via a lawless break in of the Region Four GECOM office where the certification of the results was taking place. This act in itself, I believe put the entire election in doubt,” Nestor, a former People’s National Congress (PNC) Member of Parliament, said.
PNC/R Member and Attorney-at-Law, James Bond shared similar views in a separate interview with this newspaper. Bond said the coalition had every right to challenge the results of the elections, as he pointed to the irregularities that were unearthed during the National Recount. He said the irregularities were not just procedural but included discrepancies that pointed to electoral fraud.
Notably, the Chief Elections Officer, Keith Lowenfield, in a report following the completion of the National Recount, said the Elections lacked credibility as he pointed to 4,864 cases of voter impersonation, and more than 2,000 anomalies that impacted well over 200,000 votes across the 10 Electoral Districts. It was also during the recount that 47 ballot boxes from the East Coast of Demerara (ECD) were discovered with none of the statutory documents, not even the Official List of Electors (OLE). “…whether it affected the outcome of the elections significantly or not is a matter for the Court to decide but there were in my view enough irregularities and these could only have been cured by a complete dissection of the electoral process,” Bond said.
Executive Member of the Working People’s Alliance (WPA) and Political Scientist, Dr. David Hinds also endorsed the decision of the coalition to challenge the results of the elections, which brought the People’s Progressive Party/Civic (PPP/C) to power after a highly disputed election.
“It was a disputed election with the two major contestants accusing each other of electoral malpractice. GECOM used the controversial mechanism of a recount ostensibly to investigate the PPP’s charge of tampering with the tabulation of Region Four results. But in the process, the recount unearthed evidence of tampering before Election Day which the Coalition laid at the PPP’s doorstep. In the end, contrary to the stated objective of the Recount Order, GECOM ignored the
latter and declared the PPP the winner. In effect GECOM addressed the complaints of one contestant while ignoring those of the other with the explanation that the evidence with the recount unearthed belonged to a petition after the declaration,” the Political Scientist reasoned.
Further, he said contrary to the Representation of the People’s Act, the National Recount was used as the basis for the declaration of a winner instead of the reports from the 10 Returning Officers. “The recount therefore changed a constitutional requirement which raised the fundamental question of whether by issuing the Order, GECOM overstepped its authority,” Dr. Hinds told Village Voice Newspaper.
Dr. Hinds also pointed to the overt use of external pressure directly and indirectly to influence the outcome of the election. “The pronouncements on the outcome of the elections before it was completed by powerful countries and organizations and the acceptance of one narrative by these forces may have had an impact on the court proceedings and the decision making within GECOM. Further the use of sanctions on one contestant was a clear interference in the process that most likely determined the outcome. After sanctions on Coalition leaders, who were next in line? GECOM Commissioners, including the chairperson? Officers of the court?” Dr. Hinds reasoned.
Weighing in on the issue, former APNU+AFC Member of Parliament, Meryn Williams told Village Voice News that said filing of an election petition is an important part of Guyana’s democratic architecture. “A good citizen, regardless of political affiliation, would want to have the systems, practices, constitution and laws, in so far as the protection of that democracy is concerned, meticulously interrogated openly, continually and purposefully. I suspect that the citizens who filed those
elections petitions may have felt like there was a need to have this kind of examination conducted in the interest of Guyana’s democracy,” Williams said.
He said for this reason, both petitions ought to have been heard, argued in full and determined on their merits. However, he opined that a single judge should not have heard the case. “I also believe that, particularly given our political disposition as a country as it relates to race and ethnicity, elections petitions should be heard by a team of judges in the first instance instead of a single judge. Upon appeal the number of judges on that panel should be increased,” he opined but this he admitted would require legislative changes.
A DEFINITE APPEAL
Clearing the air, Senior Counsel Forde said while the Chief Justice (ag) pointed to the lack of evidence in her most recent judgment, the case was largely based on law – a position supported by Attorney-at-Law and Leader of the Alliance For Change (APNU+AFC), Khemraj Ramjattan.
“We would have attached to that petition, the necessary documentation to the exhibits, Exhibit A, B, C, D, E and F and those are documents which formed part of the case from which the legal issue arose. So when the Chief Justice said there was no evidence, I am quite unclear to what would have been the meaning of that,” Forde said.
No need for evidence
Weighing in on the matter, Ramjattan, who also forms part of the battery of lawyers representing the petitioners, said “there was absolutely no need in a question of law case for any evidence.”
Dubbing the criticism by the Court as “serious,” Ramjattan, while speaking on Politics 101, said he expected more out of the ruling. “The fullness and the frankness that I thought would have been part of the analysis was not there, and that is why this thing ought to go right up to the CCJ and you will get the major judges of the Caribbean dealing with these issues because any issue governing or touching and concerning the doctrine of separation of power is so fundamental that we should have a ruling from the highest court of the land,” he said.
The lawyers have assured that this most recent ruling of the court nullifying Petition 88 will be appealed. The Coalition has already appealed the decision dismissing Petition 99.