The Chairperson of the Guyana Elections Commission (GECOM) retired Justice Claudette Singh has submitted to Justice Franklyn Holder an affidavit contending that GECOM is fully empowered under the Constitution of Guyana to order a recount of votes at the March 2 general elections if necessary.
Justice Holder is currently hearing a fixed date application filed by APNU+AFC Candidate Ulita Moore. Moore has contended that a proposed recount of votes cast in the March 2 General and Religion Elections is unconstitutional. Specifically she has argued through her attorney Mayo Robertson that President David Granger and Opposition Leader Bharrat Jagdeo who signed an Aide Memoire to have the Caribbean Community (CARICOM) supervise the recount had no right to direct GECOM.
Singh as Chair of GECOM is one of the respondents in the case. The substantive hearing of the case will commence on Monday before Justice Holder. Her affidavit differed significantly from Chief Election Officer Keith Lowenfield who is also a respondent in the matter.
In response to the filing, Lowenfield stated in his affidavit that he has been advised by his Attorney Neil Boston SC that GECOM is not entitled in its exercise of its power under Article 162 of the Constitution and the Representation of the People Act to direct Returning Officer (RO) Clairmont Mingo to revisit the objections which were delivered after the controversial declaration on the 13th day of March, 2020, Singh argues otherwise.
In the 21-page document, former Justice of Appeal Singh contended that the Commission can separately and independently execute supervisory powers over the electoral process which means that the Commission can order a recount.
According to Singh, whose submission was presented to the court by her attorney Kim Kyte-Thomas, the Aide Memoire for a recount which was to be executed does not impinge on GECOM’s authority as the process for recount of votes was a GECOM process while the CARICOM Mission was the mechanism to give effect to this process.
She stressed that since she had given an undertaking to the court of Chief Justice Roxane George on March 13, before the President invited CARICOM, the process of recount was always meant to be GECOM’s process.
Her affidavit noted that she had told Justice George’s court “That the tabulation process was in progress and that should there be discrepancies in the Statements of Poll as called by the Returning Officer and those held by political parties then the discrepancy should be noted and at the end of the process if they could not be addressed then I will endeavour to facilitate a recount at the level of the Commission”.
“The undertaking by the Chair, who is also an officer of the court, should not be injuncted by this court. The undertaking was accepted by a court of competent jurisdiction and as such can be likened to an order of court. This court having concurrent jurisdiction cannot set it aside, only an Appellate Court can,” she contended in her affidavit tendered to Justice Holder’s court.
As to the authority by which Justice Singh made the undertaking, this rests she argued in Section 22 of the ELA.
The section provides that if any difficulty arises in connection with the application of any elections 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.
Further, the constitution provides for Elections to be independently supervised by the Commission in accordance with Article 162. Article 162 (1) (b) grants authority for the Commission to issue instructions and take actions necessary and expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament on the part of persons exercising powers or performing duties connected with or relating to elections.
Specifically in cases where there is evidence that the electoral process was compromised the Commission is constitutionally mandated to intervene to ensure public confidence in the electoral process, the affidavit said.
“Thus, it is respectfully submitted that pursuant to section 22 and article 162 of the Constitution the Commission has separate and independent powers under the Constitution to execute supervisory powers in respect to the electoral process. This means that the Commission can order a recount,” the submission states.
It further notes that interpretations of Article 162 which confine GECOM’s authority to when the officer is acting and not after, makes a mockery of the article and the spirit and intention of Parliament which was to vest GECOM with independent supervisory powers to ensure the fairness, transparency and impartiality of the electoral process.
The Chair has cited several instances of case law to support her arguments including the 2001 case of Joseph Hamilton vs the Guyana Elections Commission, Bharrat Jagdeo and the Attorney General.
In that case Chief Justice Desiree Bernard stated in her ruling that “… the role of the Elections Commission and its staff is to take such action as appears necessary to ensure impartiality, fairness and compliance with the provisions of the Constitution and any other acts of Parliament.”
She went on to note that in the volatile situation which pervaded the country at that time “no effort must be spared to assure everyone that the process is fair and impartial. Lingering doubts that hang like a sword of Damocles over the head of the Commission must be removed.
“Confidence in the electoral process must be restored. This is absolutely essential if we, as a nation, are to forward and strive to heal the wounds that divide us. Let fairness pervade all of our actions at all times,” the 2001 ruling added.
Singh likened the current situation to that of 2001 and stressed that the evidence before the court shows that GECOM was in the process of exercising its constitutional supervisory functions when it was stopped by the court.
“GECOM’s role is to ensure the credibility of the electoral process and as such they must take such actions as are necessary to execute this mandate,” she said.
Her affidavit also addressed the controversial rejection by the Region Four Returning Officer of requests for recounts of the votes and what she could do if a flawed report is presented to her for certification prior to the swearing in of a new President.
“The applications by several contesting parties for recounts under section 84 (of the Representation of the People Act) were rejected by the RO for Region 4 for varying reasons. The Commission can intervene to correct this even at this stage. Please note Section 5 (b) of Chapter 1:03.
“Hence two options are available to GECOM; to either accept the Chief Election Officer’s report pursuant to Section 96(2) of the Representation of the People Act, Chapter 1:03 or order a recount of the votes cast.
“Thus, it would be unlawful for the court to direct the Commission of the way forward to complete the process where these issues are still outstanding”, the affidavit contended.
She concluded that “For the reasons advanced above, the application should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions with or without the Caricom Agreement”.
