Section 84 (1) of the Representation of the People Act (RPA) (Cap1:03) states that-
“(1) As soon as practicable after the receipt of all the ballot boxes and the envelopes and packets delivered to him in pursuance of section 83 (10), the Returning Officer shall, in the presence of such of the persons entitled under section 86 (1) to be present as attend, ascertain the total votes cast in favour of each list in the district by adding up the votes recorded in favour of the list in accordance with the Statements of Poll, and thereupon publicly declare the votes recorded for each list of candidates.”
Based on the above, the procedure mandated by law that the Returning Officer should follow is-
1. Ascertain the total votes cast in favour of each list; and
2. Declare the votes recorded for each list of candidates.
Ascertain the total votes cast in favour of each list
According to section 84 (1) of the RPA, the Returning Officer as soon as practicable (i.e. in a timely manner and without delay) after the receipt of all the ballot boxes and the envelopes and packets delivered to him/her ascertain the votes. This ascertaining shall be done in the presence of the persons entitled under section 86 (1) of the RPA. Section 86 (1) states that-
“ (1) No person shall be present at the counting of the votes except-
(a) the returning officer and such other election officers as he may appoint to assist him in the counting;
(b) members of the Commission;
(c) duly appointed candidates;
(d) counting agents;
(e) such other persons as, in the opinion of the returning officer, have good reason to be present.”
Section 84(1) also sets out the method of ascertaining. It states that the Returning Officer shall ascertain the total votes recorded in favour of each list in the district by adding up the votes recorded in favour of the list in accordance with the Statements of Poll. However, the true meaning in the context of this section must be determined by the words that follow ascertain. Subsection (1) states that the “Returning Officer shall… ascertain the total votes cast…by adding up the votes recorded in favour of the list in accordance with the Statements of Poll”. Therefore, ascertaining the votes shall only be done by ‘by adding up the votes’ and not by verifying the votes.
Moreover, the Statements of Poll that should be used to add up the votes would be those in the possession of the Returning Officer. Pursuant to section 83(1) (c) the presiding officer shall-
“deliver the sealed ballot box, the sealed packets referred to in paragraph (b), and together with an envelope containing the key of the ballot box and a Statement of the Poll in Form 23A placed in one envelope sealed in the manner referred to in paragraph (b), to the returning officer of the district in which the polling place is situated.”
There is nothing is law that mandates ascertaining the votes with Statements of Poll in the possession of any of the persons required to be present pursuant to section 86(1).
Adding up the votes is done in accordance with section 87(1) which deals with method of counting. The method outlined is that in the presence of those required to attend the Returning Officer shall-
(a) open each ballot box;
(b) take out the ballot papers;
(c) count and record the number of ballot papers taken from each ballot box;
(d) count the votes recorded for each list of candidates.
Mistake on Statement of Poll/Verification Subsection (1A) of section 84 deals with the issue of mistake on the Statement of Polls and sets out two distinct scenarios.
Scenario 1-Where the Statement of Poll is not in the possession of the Returning Officer
“(1A) (a)Where an election officer for a polling district discovers a material error on the Statement of Poll from a polling station for that polling district, he shall inform the presiding officer for that polling station forthwith, and the presiding officer, if the Statement of Poll has not yet been sent to the Returning Officer, in the presence of the persons who signed the original Statement of Poll, shall prepare a corrected Statement of Poll, signed by himself and the original signatories present and the corrected Statement of Poll shall be sent to the Returning Officer;”
In this scenario a corrected Statement of Poll is done and then sent to the Returning Officer. Then section 84(1) will be activated.
Scenario 2- Where the Statement of Poll is in the possession of the Returning
Officer
“(1A (b) Where the mistake is discovered when the Statement of Poll is in the possession of the Returning Officer, the presiding officer shall be informed of the mistake and the Returning Officer shall summon the presiding officer and the persons who signed the original Statement of Poll, for the purpose of effecting the necessary correction to the Statement of Poll by the presiding officer in the presence of the other persons mentioned in this paragraph, as attend.”
In this scenario the presiding officer will inform the Returning Officer of the mistake and the mistake shall be corrected in the presence of the presiding officer and the persons who sign the original statement of poll. Then section 84(1) will be activated.
Section 84 (1A) (c) applies to both scenarios and states what happens to the corrected Statement of Poll. This provision outlines that- “The presiding officer shall post the corrected Statement of Poll next to the original incorrect Statement of Poll at his polling station and the Returning Officer shall use the corrected Statement of Poll in making the public declaration under subsection (1).”
Having posted the corrected Statement of Poll, this statement of Poll is then used to make the declaration mandated to be made under section 84(1). This means that the corrected Statement of the Poll will be used to ascertain and factored into the tally of the votes, the Returning Officer will then do his/her declaration.
Verification
Section 89 of the RPA deals with what the procedure when counting is completed and mentions verification. This means that verification comes after ascertaining. The section states-
“89.(1) Upon the conclusion of the final counting, under section 84, of the votes the returning officer, in the presence of such of the persons entitled under section 86(1) to be present as attend, shall-
(a) seal in separate packets the counted and rejected ballot papers;
(b) verify the ballot papers account given by each presiding officer by comparing it with-
(i) the number of ballot papers recorded under section 87(1)(c);
(ii) the unused and spoiled ballot papers in his possession; and
(iii) the record of tendered votes contained in the poll book;
(c) reseal the packets of unused and spoiled ballot papers;
(d) prepare a written statement as to the result of the verification of the ballot papers account and on request allow any counting agent present to make a copy thereof;
(e) publicly declare the result of the final counting;
(f) deliver to the Chief Election Officer a return in writing in respect of the final counting in Form 24 which shall set out the number of—
(i) valid votes cast for each list of candidates as aforesaid;
(ii) rejected ballot papers together with, in each case, the reason for rejection;
(iii) spoiled ballot papers delivered to him;
(iv) tendered ballot papers;
(v) persons who appear to have voted.”
Based on the above after counting the votes the Returning Officer is mandated by law to do several things including conducting verification.
However, verification is done when the counting is completed not during the count or before the count. Further, based on paragraph (b) nothing is mentioned about verifying by comparison with the Statement of Polls. Comparison is to be done between the Ballot Paper Account (which is distinct from the Statement of Polls (see section 83(9)) with the number of ballot papers recorded, the unused and spoiled ballots in the possession of the Returning Officer and the record of tendered votes contained in the poll book.
Declare the votes recorded for each list of candidates
Based on section 84 (1) of the RPA after the Returning Officer ascertains the votes he/she shall publicly declare the votes recorded for each list of candidates. Public declaration is mandated and like ascertainment of the votes must also be done in the presence of the persons listed in section 86(1) of the RPA. Accordingly, once the Returning Officer ascertains the votes (by counting) in the presence of the persons required and then declares he/she would have complied with the law.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_e-paper_3-8-2020