Dear Editor,
The critical question is whether GECOM can rely on data extrapolated from the ballot boxes where the statutory documents are missing altogether or in part?
1. The utility of the statutory documents is triggered by the circumstances captured by sections 68-76 of the Representation of the People Act (ROPA) and more importantly, the closure of polls section 83. The statutory officers, whether presiding officer, polling clerk and or returning officer have certain obligations to perform in relation to these statutory documents. They range from ensuring that an entry is made in the poll book attesting to the fact that upon the first opening of the ballot box, there were no ballot papers or other papers therein (section 68(a) to placing the different category of ballots into separate envelopes section 83(5), (6) to making up in separate packets the official list of electors or part thereof, notices of appointments to vote as proxies, copies of the lists of proxies, the poll book and other election documents.
2. The ballot box and the statutory documents are then delivered to the returning officer of the district in which the polling place is situated section 83(10) (c). Upon the delivery of these documents, the returning officer proceeds to ascertain the votes in accordance with the statement of polls section 84(1). In the absence of a counting agent requesting a recount, the declared results are forwarded to the Chief Election Officer for him to prepare his report. Importantly, and in this context, there is no need to examine the statutory documents unless of course an election petition is filed post elections.
3. It must be noted that it is that standard operating procedure (SOP) at GECOM for all the aforementioned documents with the exception of the statement of poll to be placed in the ballot box.
4. Where a counting agent requests a recount (limited or general) and it has concluded, the returning officer shall perform the obligations as captured by Section 89 of ROPA. Significantly, it requires the returning officer to verify the ballot paper account by comparing same with, inter alia, the unused and spoiled ballot papers in his possession and the record of tendered votes contained in the poll book section 89(1)(b) . Notably, in the context of a counting agent requesting a recount, select statutory documents are chosen to enable verification. These documents are critical to establishing the accuracy of the recount and by extension, the credibility of the process. At this point, the returning officer is prohibited from opening the packets containing tendered ballot papers, the marked copies of the list of electors or part thereof or the counterfoils of the used ballot papers section 89 (2). Easily discernable is the fact that these documents are supposed to be in the possession of the returning officer but he may only make reference to a select few with a view of determining the credibility of the count.
5. The gazetted order provides for a recount that is outside of the framework of Representation of the People Act though it retains some of the modalities of the Representation of the People Act framework. This is because 10 lawful declarations have been made by the district returning officers and recounts have been rejected, aborted or held in abeyance. Fundamentally, it provides for a recount of the ballots cast in all the electoral districts coupled with a reconciliation with a menu of statutory documents way beyond the select few identified by section 89(1)(b) . Inescapably, this extensive reconciliatory list ought to further give credence to the accuracy of the ballots extracted from the ballot boxes and enrich the overall credibility of the process.
6. It must be noted, that the Order made under the Official Gazette number 60/2020 is what is considered as subsidiary legislation. Caribbean scholar and legal luminary Rose-Marie Belle Antoine in book Commonwealth Caribbean Law and Legal Systems at page 235 made it clear that subsidiary legislation is a source of law and it has legal force and authority. Further, the Full Court in Dr. Bharrat Jagdeo v. Ulita Moore and Others at paragraph 64 acknowledged GECOM’s authority to legislate.
7. It would follow that the absence of these statutory documents or where there is excess or missing ballots in a box, the resulting inability to balance that box suggests that there was noncompliance by the statutory officers with the provisions and/or SOP of GECOM that mandate the performance of certain obligations in relation to the said documents and or the electoral process of GECOM has been compromised. In effect, both instances cast a tremendous cloud over the veracity of the ballots cast.
8. In Holladar v Returning Officer, Chief Election Officer Guyana Elections Commission, CJ George highlighted a statutory officer holder ought to perform his or her duties in accordance with the law that governs their powers. Where there is non-compliance, the court can exercise its supervisory powers to direct that there is compliance with the law. It is patently clear that, at a minimum, there may have been noncompliance with the statutory provisions by the necessary office holders for the obligations that were to be performed. The non-compliance with these provisions carry ‘serious consequences’ in that where a recount is invoked, the returning officer will be unable to verify same. The intention of Parliament ought to have been to ensure that at the stage of a recount, the credibility of the ballots emanating therefrom can be cross referenced with other electoral documents emanating from the respective polling station so as to ensure that the outcome is a true reflection of the will of the Guyanese people. Understandably, and in the absence of these documents, the will of the Guyanese people cannot be logically accounted for by GECOM.
9. It would appear that the jurisdiction of the court can be invoked to vitiate the declaration of results that emanate from substantial noncompliance with provisions highlighted in paragraphs 1 and 2. Instrumentally, the invocation of the court’s jurisdiction is not to challenge the results of the elections but to ensure that the requirements of the statute are carried out. However, a distinction ought to be made between Holladar and the present circumstance. In Holladar, the court could have ordered compliance with the section because at the time in question, compliance was indeed possible. In the present circumstance, for compliance to be ordered would mean that one would need to return to polling day and ensure that the statutory officers comply with the respective provisions. Admittedly, this is an impossibility. This would require the beginning of the entire electoral process. Nevertheless, the absence of the documents gravely impairs the credibility of any result that may emanate from this still ongoing process (The case of Gladys Petrie makes reference to the term election being construed very widely). After all, GECOM is charged with delivery of ‘free, fair and credible’ results and must stay resolute in so doing. It would follow that where these documents cannot be found for reconciliation and scrutiny in compliance with the Order legislated by GECOM and where there is excess or missing ballots, the data in relation to the corresponding ballot boxes would not escape the cloud that questions its accuracy and consequently will be unlawful for their failure to comply with the Order.
10. As a result, it is my respectful opinion that any advice tendered to GECOM by the Chief Election Officer in accordance with Article 177 of the Constitution with unverified and unreconciled votes will be unlawful for failure to comply with Order 60/2020.
Yours faithfully,
Darren P.W.Wade
Attorney-at-Law
