In Future Notes of 20 May 2020 in response to the chairperson of the Guyana Election Commission’s statement that the commission did not have the capacity to consider the illegalities and irregularities uncovered during the Caricom monitored recount process, I stated that GECOM ‘cannot logically present a legitimate winner without first taking into consideration the illegalities etc. that the coalition claims to have unearthed.’ About two weeks later, I bolstered this by providing international best practice recommendations. ‘[T]he electoral management body requiressystems in place to fulfill two specific responsibilities: Detect and document all attempted cases of voter fraud, … Determine, if at all possible before the finalisation of counts and the announcement of election results, if the extent of any detected fraud regarding voting is sufficient to have a possible effect on the results of any election [and if necessary make] application to the relevant judicial authorities that an election be set aside.’
Initially, the chair of GECOM provided the state authorities with a sample of the claims to determine their validity and the authorities’ responses were positive. However, instead of proceeding by adopting the best practices above, out of the blue the chairperson decided that the commission did not have the capacity to properly investigate such matters! By a majority, GECOM then rejected its CEO’s attempt to follow the best practices suggestions and proceeded to declare a PPP/C victory based upon a report that contained all of the irregularities.
In her decision on the recent election petition brought by Claudette Thorne and Heston Bostwick, the acting Chief Justice (CJ) concluded that Section 22 of the Election Laws (Amendment) Act (ELA) was constitutional and the Recount Order valid because ‘as part of its core function, pursuant to Articles 62 and 162 of the constitution GECOM had an obligation to complete the election process and therefore had a concomitant obligation, duty and responsibility to address such difficulties, to achieve this.’ Section 22 states, ‘(1) If any difficulties 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 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.’
The remit of Section 22 is so broad that the coalition lawyers believe it is unconstitutional in that it gives to GECOM the capacity even to make law to overcome difficulties in the elections process. It appears to me, then, that whatever the chair of GECOM meant by not having the ‘capacity’, it could not have been the legal authority. Indeed, the legal scope of authority given to GECOM suggests it had a duty to determine if the illegalities affected the outcome of the elections before determining a winner.
No wonder there is much talk of regime change but, given the above, where are we now in the 2020 electoral process? Of course, regardless of who wins these petitions the other party will, if possible, appeal. But, in a nutshell, the acting Chief Justice had suggested that the petitioners bring a single petition; they brought two. She dismissed the first petition for late service. She has now thrown out the other on the grounds that the Recount Order is lawful and the petitioners did not present the evidence – which was contained in the first petition – that sufficient irregularity took place to annul the 2020 elections. A friend calls me on occasion and always jocularly enquires, ‘Are you still living in Toy Town?’ (The views expressed in this article are not necessarily that of Village Voice News)
