APNU/AFC elections case to delay declaration: Judgment to be delivered Thursday

Georgetown: The Court of Appeal will deliver its judgment on Thursday at 11:00 h in the case brought by APNU/AFC supporter Misenga Jones, who is seeking to overturn a decision of the Chief Justice (ag) Roxane George who had determined that the recount results must be used to declare the winner of the March 2 elections.

Attorney Kim Kyte-Thomas

This judges presiding over the ruling are Justices Dawn Gregory, Rishi Persaud and Priya Seenarine-Beharry.

Jones, through her attorneys, Trinidadian Senior Counsel John Jeremie, APNU/AFC Candidate Roysdale Forde, Keith Scotland, Mayo Robertson and Rondelle Keller, is contending that the Chief Justice erred in law when she dismissed the case.

Kim-Kyte Thomas, attorney for Justice (rt’d) Claudette Singh, Chair of GECOM, said that if the Court of Appeal were to order the use of the elections report prepared by the Chief Elections Officer using figures other than that generated in the recount would be to allow itself to be used to help with the perpetuation of electoral fraud in Guyana.

Kyte-Thomas, in oral arguments, contended that what the applicant is asking the Courts to do is to aid and abet a series of illegalities which led to the March 13 declaration in District Four and the preparation of a report by the Chief Elections Officer for a declaration of the results of the elections to be made.

She said the Court can act to ensure that an officer does not commit certain illegalities. Even when the High Court had ruled that the Returning Officer in District Four had acted unlawfully in making his first declaration and thus voided it, he still attempted to make declarations in breach of the Court’s order, acting outside of the clear provisions of electoral statutes.

And it was in the midst of all that, Kyte-Thomas stated, that GECOM had to step in to ensure its officer acts lawfully and determined a recount was needed to establish a credible count.

But the applicant wants the Court to set aside and remove the tabulations from the national recount when the country’s highest court – the Caribbean Court of Justice (CCJ) – has already ruled that the recount was transparent and no other results stand.

What the applicant wants is for the declaration of March 13, deemed fraudulent, to be used.

Kyte-Thomas called on the Court of Appeal not to allow itself to be used as an instrument to perpetuate that fraud.

Kyte-Thomas declared that the Chief Elections Officer must comply with the directions he was given by GECOM to use the results of the national recount to prepare a report which would be used to make a declaration.

Court of Appeal judges Dawn Gregory-Barnes and Rishi Persaud along with High Court Judge Priya Sewnarine-Beharry

Meanwhile, Attorney Timothy Jonas, representing Josh Kanhai of The New Movement (TNM), submitted that contrary to what the applicant Misenga Jones is arguing, GECOM cannot blindly accept a fraudulent act by one of its officials and pretend it never happened.

Attorney Sanjeev Datadin, for the United Republic Party (URP), argued that while GECOM must act on the advice of the Chief Elections Officer, the advice must come from figures which are lawfully generated and not numbers the Chief Elections Officer comes up with on his own.

Senior Counsel Ralph Ramkarran, for the Liberty and Justice Party (LJP), argued that GECOM can act to ensure the Chief Elections Officer presents the correct results when they find that he is incorrect.

He cited the case in 2011 when the PPP was being assigned one seat more than they were entitled, GECOM acted to make the correction.

Senior Counsel Douglas Mendes, attorney for Opposition Leader Bharrat Jagdeo and PPP Presidential Candidate Irfaan Ali, argued that the Chief Elections Officer is an officer employed by GECOM and like any employee he is subject to the direction and control of his employer.

Meanwhile, Senior Counsel John Jeremie representing the applicant in his arguments questioned the validity of Order 60 of 2020; observing that the notion that the Order can amend the constitution is unconstitutional. Therefore the 10 declarations by the Returning Officers as submitted by the CEO stands. The Senior Counsel posited that the 10 declarations cannot be set aside outside of an election petition.

His client is contending that to “base any report as amended would be inconsistent with Section 177:2 (b) of the Constitution, the Representation of the People Act and in defiance of the ruling of the CCJ.”

Jeremie pointed out that no section of Order 60 could have any effect where it is inconsistent with the Constitution which is the Supreme Law in Guyana.

Order 60 is deeply flawed he said adding that the elections must be declared consistent with the laws of Guyana which is what the CEO has done.

The constitution he said “must take precedence. Any challenge to the CEO’s report can only be challenged via an election petition (as indicated by the CCJ) in the High Court which has exclusive jurisdiction to deal with the matter. GECOM and the Chair are under a statutory obligation to adhere to the advice of the CEO which is in accordance with the laws of Guyana,” Jeremie underscored.

However, De Facto Attorney General Basil Williams argued that the Chief Justice erred in her ruling when she held that the CEO did not have a constitutional mandate.

He contended that according to Article 177:2 (b) of the Constitution, a declaration can only be made after it has been advised by the CEO.

He held that nothing in the Constitution speaks to the CEO being directed by the Chairman or the Chairman making a declaration based on anything other than the advice of the CEO.

“GECOM has to act based on the advice of the CEO and any law inconsistent with the constitution is null and void,” the AG Williams stated.

The declarations made by the Returning Officers, he argued have not been invalidated noting that the CCJ said that they cannot be invalidated except by an election petition.

The Attorney General recommended that the court to use its supervisory jurisdiction to act on the case before it, as it has done in previous cases.