Guyana's Court of Appeal to rule on latest election battle this Thursday

(CMC): Guyana's Court of Appeal, today, said it will provide a ruling on Thursday to a lower court ruling regarding the ongoing challenges with the disputed March 2 regional and general elections.

“Having recognised we have heard the main appeal and there are two cross appeals that are also part of the case. Having regard to the submissions we have heard, the fact that more submissions will be coming in up to tomorrow, we are in a position to say we will give our decision on Thursday…the 30th of July at 11.00 am,” said Justice Dawn Gregory-Barnes on behalf of the three-member Court of Appeal.

During the five hour proceedings, Trinidad-based Senior Counsel, John Jeremie, said his client, Misenga Jones, was appealing the ruling of Chief Justice Roxanne George, because she had erred in her judgement.

Jones had challenged the Guyana Elections Commission’s (GECOM) move to make a declaration of the March 2 elections, using votes tabulated by the national recount process, which she said was ruled unconstitutionally by the Caribbean Court of Justice (CCJ) on July 8.

Jones had argued that Section 22, which was relied on for the crafting of the Order 60 of 2020 or the National Recount Order, is unconstitutional, in contravention of Article 170 of the Constitution, as it empowered the commission to craft a law when it remains a non-legislative body.

In his argument, Jeremie said that Section 22 of the Election law “is wide, unfettered and unregulated” and that Order 60 was also invalid.

“For all of those reasons we say that Section 22 is unconstitutional. But if Your Honours are not with us on that we say that the purposed exercise of the powers are in fact unconstitutional."

“In any event, Section 22 by its purport seeks to amend the Representation of the People’s Act (ROPA), the National Registration Act or any other relevant subsidiary legislation. It clearly excludes from that the National Assembly Validity Act, which is the Act that operationalises Section 163 of the Constitution," he argued.

He continued: "What the Court downstairs could not do, what [the] Court cannot countenance is a wider interpretation of Section 22 than it purports to have. What Section 22 did was to give ….to an order, which allowed for the breaking of the seals of ballot boxes, it allowed for the inspection and scrutiny of ballots, allowed for GECOM if satisfied to set aside declarations," Jeremie said.

He said all of those are matters for the High Court under the Constitution and any such action taken by GECOM is and must be unconstitutional,” 

“We say also that Order 60 is invalid …We argue that its provisions conflict with Section 161 of the Constitution [which] provides that GECOM is subject to the provisions of the Constitution.

“It can’t usurp functions under the Constitution and the Constitution says it is subject to the Constitution and other laws. It cannot make an order as it purports to do in Order 60 with respect to the breaking of seals, the examination of election material and on top of all of that give powers to someone who is not a judge to overturn the results of the declarations which have already been made,” Jeremie, a former attorney general in Trinidad and Tobago argued.

'Court of Appeal should not perpetuate electoral fraud'

But Kim-Kyte Thomas, who is representing the GECOM chairman, retired justice Claudette Singh in the proceedings, urged the Court of Appeal not to allow itself to be used to help with the perpetuation of electoral fraud in Guyana.

“This is exactly what the appellant is asking this Honourable Court to do. Your Honours they dressed up this application with a lot of legal language, a lot of legalese is used. They said that Section 22 is unlawful, they say Article 162 gives GECOM too many wide powers, they contend that GECOM has breached Article 163 of the Constitution."

“Your Honours my very short answer to all of that …is that all of their allegations, their contention, their attack on specific pieces of legislation which form the basis of our electoral laws and framework for a very long time, all of these attacks can be frontally addressed…by virtue of an election petition."

She argued that a distinction has to be made between “what is an election dispute and what is GECOM attempting to ensure…a distinction has to be made”.

“We ask this Court not to be an element of fraud. I ask this Court to desist from that,” she said, insisting that the Chief Elections Officer, (CEO), Keith Lowenfield “is a statutory officer and he is subject to the disciplinary control of the Commission."

“He cannot flaunt the law. He cannot act in excess of the law. His report must be constrained. His report must be in accordance with the law,” she said.

However, attorney general and Minister of Legal Affairs, Senior Counsel Basil Williams, is maintaining that the GECOM chairman must follow the advice given to her by Lownefield and act upon it.

Williams argued that the Chief Justice erred and misdirected herself when she interpreted the provisions of Article 177: 2 (B) and that those words are not in that Article but the opposite, whereby the Article advises the chief elections officer to act alone in his advice to the Commission.

“The words in 177: ‘shall and acting only in accordance to the advice,’ are mandatory and have three mandatory advice or commands, and is a simple natural grammatical literal meaning of Article 177: 2 (B),” Williams said.

He said that these are that the presidential candidate that received the most votes shall be deemed to be elected as president; the chairman shall declare the presidential candidate to be the elected president, and the chairman shall make the declaration using only the advice of the chief elections officer.

“Acting only in accordance with the advice, that too must be given a plain meaning to arrive at the true intent of the legislature,” he said, arguing that the role of the CEO under the Constitution must be seen as separate from the day-to-day administrative function where he is under the direction of the commission.”

The attorney general told the Court of Appeal that the promulgation of this specific advisory role to the level of the constitution must not be viewed as ‘ordinary’ and taken lightly as the elections must be seen as being free of interference; “even the interference of the commission, which is made up of politically-appointed commissioners.

“The words ‘acting only on the advice of the Chief Elections Officer’ are deliberate and clear and have to be given their true meaning," Williams said.

“We are respectfully submitting mutatis mutandis, that in this case, the Chairman’s position is merely formal and simply to follow the advice given and act on it.”

High Court was right in its ruling

In his submission, Trinidad-based Senior Counsel Douglas Mendes, who is representing Opposition Leader Bharrat Jagdeo and the presidential candidate of the main opposition People’s Progressive Party/Civic (PPP/C), Irfaan Ali, said that the High Court was right in its ruling given that the matters being argued were ones to be dealt with as an election petition. Both the PPP/C and the ruling coalition, A Partnership for National Unity (APNU) are claiming victory in the elections.

“We respectfully submit in these circumstances that the High Court does have the jurisdiction to make such orders as may be necessary to resolve that impasse (between the GECOM chairman and the CEO) more particularly to ensure that the election process is complete.

“Having regard to the fact that the law includes Order 60 at this point in time, which includes the recount, the only order logically consistent with the law as it is that the Court can make is to require the Chief Elections Officer to comply with the law, that is to say, to prepare his section 96 report in accordance with the recount.

“We say the Court has jurisdiction in this limited sense to intervene at this stage and not defer to an election petition because you can’t bring an election petition until the election is declared. So you in a catch 22 situation “

Douglas said that the only way that the election can be completed “so that the election petition process under Article 163 can be invoked is to make the necessary orders to complete the process.

“The CEO can’t hold it up, he can’t decide for himself, he cannot make any decisions as to what law is invalid and what law is not. If he is doing that then he is violating the separation of powers doctrine because a member of the executive cannot decide what laws are valid and what laws are not valid.

“That is just basic constitutional law and therefore his obligation is to comply with the law,” Mendes said, telling the Court of Appeal “we should not be here at all.

“The fact that he has decided not to comply with the directions of GECOM made clearly in pursuant to Order 60 has allowed this appellant to come to court in order to stop it. He has provided the basis for these proceedings in other words,” Douglas argued.

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