The Guyana Court of Appeal will tomorrow deliver its ruling in the appeal filed by APNU+AFC candidate Ulita Grace Moore, who has challenged a Full Court decision to discharge injunctions that had halted preparations for a recount of votes cast at the March 2nd polls.
Even as the court is now set to rule at 11am tomorrow on Moore’s application seeking leave to appeal the Full Court decision, the Guyana Elections Commission (GECOM) yesterday indicated that it will be conducting a national recount of all votes cast at the March 2 general and regional elections. As arguments were being presented to the Appeal Court yesterday morning, GECOM, during a meeting which was held simultaneously, voted to conduct the recount, which it said would be done chronologically beginning with Administrative Region One (Electoral District One). Guyana has 10 administrative regions, of which Region Four is the largest. It is the results from Region Four that have been in dispute since the tabulation of votes began after the March 2 polls.
Moore had applied to the High Court for judicial review by way of an application in which she contended that GECOM could not order a recount based on an Aide Memoire signed by President David Granger and Opposition Leader Bharrat Jagdeo.
President Granger had contacted Chair of the Caribbean Community (CARICOM), Prime Minister of Barbados Mia Mottley, and agreed for a recount to be done following controversy over the tabulation of the votes cast for Region Four, which opposition parties as well as international and many local observers say was not done in a transparent and credible manner.
Following the president’s request, Prime Minister Mottley had put together what she described as an independent high-level CARICOM team, which traveled to Guyana to supervise the recount. This was, however, aborted after Moore filed her application and was granted the injunction against the recount.
In the High Court, Justice Franklyn Holder had granted Moore interim injunctions halting the recount process until her case would have been fully heard and determined.
However, the Opposition challenged this and the Full Court, comprising acting Chief Justice Roxane George-Wiltshire SC and Justice Nareshwar Harnanan, dismissed Moore’s case and discharged the injunctions on a finding that her matter ought to have come by way of an elections petition as opposed to an application for judicial review.
This was Jagdeo’s position regarding Moore’s case, which he argued that Justice Holder did not have jurisdiction to hear.
Surrender
During his presentations to the Appeal Court yesterday, one of Moore’s attorneys, Dr Francis Alexis, questioned what he described as the purported independence of the CARICOM team which, he said, was not done by the GECOM which alone according to law is vested with the power to conduct elections in Guyana.
He said that such acts had constitutional implications because it was contrary to what the law requires and it was for such reasons that his client wanted judicial intervention and pronouncement on the issue.
Referencing the agreement between Granger and Mottley to which Jagdeo did not object, Alexis pointed to it speaking about the CARICOM team “supervising” the recount process.
But counsel took issue with this, arguing that there were no provisions in the Constitution, the Representation of the People Act nor the National Assembly Validity of Elections Act, which allowed for GECOM to select such a team or even delegate such a responsibility to any team outside of the commission.
He said that GECOM could not act upon such an agreement since it amounts to usurping the powers of the commission and its chairperson thus “forcing them to surrender.”
In their arguments attempting to persuade the appellate court why their client should be granted leave to appeal, Alexis and Keith Scotland, another of Moore’s attorneys, said that her complaints inquire into constitutional issues and should be dealt with by the courts at this stage.
Senior Counsel Douglas Mendes who represents Jagdeo, however, strongly disagreed stating that history has always shown that as far as raising questions of elections are concerned, it can only be addressed in an elections petition.
In accordance with law, such a petition can only be filed within 28 days after a final declaration of results is made by the Chief Election Officer.
Referencing a number of case laws, Mendes said that contrary to Alexis’ advancements, constitutional issues arising from an election have always been raised in elections petitions.
He said that as a matter of fact, it is there that such issues are to be raised for which jurisprudence supports all the up to the Caribbean Court of Justice (CCJ) – Guyana’s final appellate court.
Mendes said that Section 140 of the Representation of the People Act confirms this position.
He said that Moore is challenging “acts” by the commission and not “omissions,” while arguing that it is specifically acts which ought to be challenged in a petition.
Surprise
Making presentations yesterday too was attorney Roysdale Forde, who also represents Moore. He brought to the court’s attention a press release dated April 2nd, which he said indicated that the commission was engaged in deliberations geared towards a recount.
Against this backdrop, he reminded that his client’s case concerning that very recount was still being litigated in an effort to have the issues resolved by the court.
He said that the position taken by the commission as a whole runs contrary to his understanding that the court is still seized of the matter. In order to have the issues first resolved by the court, Forde sought from the court an interim order.
Mendes, however, said that Forde could not just make such an oral application in the absence of any written submission supporting his request. In any event, he said that his client ought to be given a chance to respond to Forde’s application.
Attorney Kim Kyte-Thomas, who represents GECOM Chair retired Justice Claudette Singh, said that she was not aware of an affidavit filed by Forde on behalf of his client and said she needed to first seek instructions from her client.
She said she was taken by surprise by the affidavit which she belatedly learnt had been filed at her chambers. She said that she would first have to peruse the document before making any pronouncement.
The court granted no orders, but allowed Mendes and Kyte-Thomas the time to respond, and stated clearly that it would be rendering its decision on the matter at 11am tomorrow.
The opposition PPP/C’s position has been that Returning Officer (RO) for Electoral District Four, Clairmont Mingo did not, as required by law, use the statements of poll (SOPs) to tabulate the results he eventually declared.
In an affidavit dated March 20th, GECOM Chair Singh had given an undertaking following a ruling delivered by Justice George-Wiltshire that should there be discrepancies in the SOPs called by Mingo with those held by political parties, then such discrepancies would be noted at the end of the process if they could not be addressed then, and she would endeavour to facilitate a recount at the level of the commission.
The case before the Court of Appeal is being presided over by Justices of Appeal Rishi Persaud, Dawn Gregory and High Court Judge Brassington Reynolds.
