Acting Chief Justice Roxane George-Wiltshire SC has ordered that the Statements of Poll (SoPs) and Statements of Recount (SoRs) from last year’s general and regional elections, be released within the next 10 days to the prosecution, for trial of the charges laid against persons accused of fraud connected with those elections.
Chief Election Officer (CEO) Keith Lowenfield—who is among those charged—had filed an application asking to be added as a party to the proceedings in which the Director of Public Prosecutions (DPP) and Commissioner of Police had requested the statutory documents.
Dismissing his application today, however, the Chief Justice said that contrary to the CEO’s contentions, he has no interest—legal, direct or substantial to have intervened in the matter; and in fact, he could not bar the request made for the documents.
In her ruling, the judge noted that the documents are a matter of public record and there could be no good reason for not releasing them in the interest of fair and open justice.
Through his attorney Nigel Hughes, Lowenfield had argued that outside of the purpose for matters connected with an elections petition, the statutory documents ought not to be released—contending that in accordance with the Representation of the People Act (RoPA)—as CEO he was not at liberty to avail the documents.
The Chief Justice, however, noted that Hughes’ submissions were “misconceived” and “untenable.”
The Court instead found favour with the advancements made by attorney Darshan Ramdhani—counsel for the DPP and Police Commissioner—who had argued that Lowenfield had no interest under the RoPA or the National Assembly Validity of Elections Act (NAVEA) as he sought to claim, to have prevented him for making the documents available.
Referencing a plethora of case law authorities, the Chief Justice said that the interest which the CEO ought to have established in the outcome of the proceedings —was not a personal one—but a legal, direct and substantial one.
The judge noted that but for her order earlier this year that the documents be lodged with the Registrar of the Supreme Court for safe-keeping, the prosecution could have gone ahead and requested a warrant from the Magistrate in accordance with Section 50 (1) (b) of the Criminal Law Procedure Act.
Noting that this is a common-place practice in the prosecution of criminal matters, Justice George-Wiltshire said that in such circumstances, in the ordinary course of things, the CEO would not have been able to ask to intervene in the way he did.
She reasoned that it was because of her previous order that the prosecution needed to rightfully make an application before her for the documents to be released; as it is only by court-order that the Registrar could release the documents.
The judge went on to reason, after citing a number of other legal authorities, that it could not be that the police and prosecution could not seek the release of the documents for their investigations to build their case and gather whatever evidence they believe they may have or that may be yielded therefrom.
The Chief Judge explained that while the CEO is indeed the custodian of the documents in question, he has no personal interest or right to them; but rather acts as a mere agent—in his capacity as CEO—on behalf of the Guyana Elections Commission (GECOM).
On this point she further said that his position as CEO does not preclude him from releasing the documents.
Justice George-Wiltshire said that the provisions of RoPA and the NAVEA regarding custody and safe-keeping of the documents and the challenge to the validity of an election, do not mean that the documents cannot be released to law enforcement entities as part of their investigations, or in support of criminal proceedings, event where the CEO is also a defendant in those proceedings.
She said that the CEO does not have an interest to object to the court granting the release of the documents; while noting that they are public records and would aid open and transparent justice.
The judge had rhetorically asked, how it is that this could adversely affect any perceived interest Lowenfield thought he had in the outcome of the case.
In fact, Justice George-Wiltshire noted that Lowenfield failed to illustrate in the first place, how it is that any interest of his would have been affected adversely.
The judge further said that to have intervened, Lowenfield would have unnecessarily complicated and delayed the matter.
In all the circumstances, the Chief Justice denied Lowenfield’s application to intervene; and ordered that the documents be released to the prosecution within 10 days from today.
Pursuant to a court order, the Chief Justice in January ordered that the statutory documents be lodged for safe-keeping with the Registrar of the Supreme Court.
Respondents in the two election petitions, which were filed by the main opposition APNU+AFC, had asked the Chief Justice to order the Elections Commission to lodge the documents with the High Court.
The DPP and Police Commissioner would later request the documents which they contend are important for the successful prosecution of the criminal charges stemming from alleged criminal conduct over the elections results.
During arguments on Monday, Ramdhani had said that Lowenfield’s use of Section 102 of RoPA and Sections 19 of the NAVEA was misconceived, since his clients’ application had nothing to do with an elections petition, and that there was therefore no protected interest or right which the CEO had for blocking the release of the statutory documents.
Ramdhani had said that the interest/rights referenced by the CEO under Sections 102 and 19 of the RoPA and NAVEA respectively were only operable under the civil/constitutional jurisdiction of the court dispensing with an elections petition.
He, however, drew the distinction to show that the application his clients had made to the High Court, was pursuant to a need under a criminal jurisdiction of the Magistrate’s Court; while arguing that the SoPs and SoRs ought therefore to be released.
The thrust of Hughes’ argument had been that the CEO is only authorized to make the statutory documents available in the case of an elections petition, and nothing else; a right which he said was afforded him by the RoPA.
Ramdhani had said that the only correct submission made by Hughes was that the CEO would need a court order to have the documents made available.
Hughes’ argument, however, was that this could only have been in the context of an election petition.
Following the unprecedented, protracted five-month impasse—from March 2nd to August 2nd, of last year—during which a national recount of all ballots was conducted, the results showed that it was the PPP/C which had won the general elections with 233,336 votes over the coalition’s 217,920 votes.
Subsequent to the announcement, Lowenfield, Deputy Chief Election Officer Roxanne Myers, Region Four Returning Officer Clairmont Mingo, PNCR chairwoman Volda Lawrence, APNU+AFC activist Carol Joseph and a number of other GECOM staff were slapped with a barrage of fraud-related charges connected with the elections.
Those charges are still pending before the Magistrate’s Court, and have formed the basis of the request by the DPP and Police Commissioner for the SoPs and SoRs which they say are pivotal to proving their cases against the defendants.
In their fixed date application to the High Court, DPP Shalimar Ali-Hack and Commissioner of Police (ag) Nigel Hoppie had asked that the court’s Registrar, Sueanna Lovell, be ordered to make the SoPs and SoRs in her possession available for the Magistrate’s Court trial.
