CHAIRMAN of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh, through her legal counsel, Kim Kyte-Thomas, said with or without the Aide Memoire, the Elections Commission, under the Constitution, has the power to order a national recount of all the votes cast at the March 2 General and Regional Elections if it is found that the electoral process has been compromised.
In the case Ulita Moore v The Guyana Elections Commission, the Chairman of GECOM and others, Moore is contending that the Elections Commission cannot order a recount based on an Aide Memoire signed by President David Granger and the Leader of the Opposition, Bharrat Jagdeo. But Kyte-Thomas, in her submissions to the High Court on March 26, said GECOM can take whatever action it sees fit to ensure the electoral process is fair and impartial as provided for in Article 162 (1) (B) of the Constitution.
“Once there is evidence that the electoral process was compromised, then to ensure the impartiality, fairness and compliance with the provisions of the Constitution or of any Act of Parliament, the Commission is constitutionally mandated to intervene to ensure public confidence in the electoral process,” the Legal Counsel told the Court. She further submitted that pursuant to Section 22 of the Election Laws Amendment Act No 15 of 2005 and Article 162 of the Constitution, GECOM, with or without the Aide Memoire, has separate and independent powers to supervise the electoral process, and in doing so, it can order a recount.
“Any restrictive interpretation of Article 162 confining it only to when the officer is acting and not after, makes a mockery of the article and the spirit and intention of Parliament,” Kyte-Thomas said. She noted that in the case Keshavan Madhava Menon v Bombay AIR 1951, Justice Das declared “a court of law has to gather the spirit of the constitution from the language of the constitution.”
The Legal Counsel argued that it was Parliament’s intention to vest GECOM with independent supervisory powers to ensure the fairness, transparency and impartiality of the electoral process. She further submitted that Section 140 of the Representation of the People Act provides the Elections Commission with additional protective shield to act independently in the execution of its mandate to provide credible elections.
In support of her arguments, Kyte-Thomas referenced the case of Joseph Hamilton v Guyana Elections Commission, Bharrat Jagdeo & AG (2001). In that case, the then Chief Justice, Desiree Bernard stated “… 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. In the present volatile situation, which pervades our country, [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 no was move fairness pervade all of our actions at all times [sic].”
Kyte-Thomas told the Court that the words of the then Chief Justice are fitting and appropriate for the controversies it currently faces. She said the Order, which has been tendered as evidence, shows that the Elections Commission was in the process of exercising its constitutional supervisory functions when it was stopped by the court.
“The CARICOM Mission was simply the mechanism used to give effect to the recount,” the Legal Counsel submitted, while maintaining that GECOM must ensure the credibility of the electoral process. To do such, it must take necessary actions as it sees fit, she argued.
In the order, GECOM acknowledged that while the declaration of results have been made pursuant to Section 84 (1) of the Representation of the People Act, it has been marred by controversy and challenged in legal proceedings in the High Court. Given the circumstances, the Elections Commission was seeking recourse in Section 22 of the Election Laws (Amendment) Act, No 15 of 2000, to remove difficulties connected with the application of the Representation of the People Act in implementing decisions related to the conduct of the recount.
“The order prepared by GECOM itself provides the reason for the necessity of the intervention by the commission. It shows clearly that the CARICOM team was just the mechanism to assist in providing credible results to the nation,” Kyte-Thomas submitted to the Court.
Further to that, the Legal Counsel reminded the High Court of the GECOM Chair’s commitment to the Chief Justice (ag) Roxane George-Wiltshire on March 13, 2020, during the case Holladar and Returning Officer and others.
Justice Singh told the Chief Justice (ag) 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.”
Kyte-Thomas said added to that, the evidence shows on March 14, the Chair indicated that her commitment was then bolstered by the President and the Leader of the Opposition agreement to have a high-level CARICOM team oversee a national recount.
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_e-paper_3-29-2020