– points to CCJ judgement
– Dr. Hinds states Chair Crossed the line
By Lisa Hamilton
“THE Chairman cannot invalidate the votes of the 10 Returning Officers already counted as valid votes; only an election Court decides otherwise,” Attorney General (AG) and Minister of Legal Affairs, Basil Williams S.C. has stated.
He based his position on the Caribbean Court of Justice’s (CCJ’s) written judgement on the Bharrat Jagdeo and Irfaan Ali v Eslyn David case, paragraph 46, in which it states: “…It is clear that, under the legal infrastructure governing the electoral process, unless and until an election court decides otherwise, the votes already counted as valid votes are incapable of being declared invalid by any person or authority.”
The Court noted that, in this respect, Guyana’s electoral system is not very different from other such systems in other Commonwealth Caribbean countries.
GUIDED BY LAW
The AG had reason to bring attention to this information as just on Monday, reports indicated that Chairman of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh, had set aside the declarations made in March 2020 by the Returning Officers in the country’s 10 Electoral Districts.
This information was made public by People’s Progressive Party/Civic (PPP/C) nominated Commissioners and was later confirmed by GECOM’s Public Relations Officer (PRO), Yolanda Ward. It comes as the Chief Elections Officer (CEO), Keith Lowenfield, in presenting his Elections Report to the Commission, did so on the basis of the said declarations made by the Returning Officers, in accordance with Section 96 of the Representation of the People Act.
While the High Court had invalidated the March 5, 2020 declaration made by the Region Four Returning Officer, Clairmont Mingo; his second declaration made on March 13, 2020 was never invalidated by the Court.
Those declarations and the Elections Report were placed in abeyance by the GECOM Chair to pave way for the national recount. It was public understanding that they would be held in abeyance until replaced by another declaration.
However, with the CCJ indicating that the Constitution trumps the recount Order No.60, in the areas where there is contradiction, the Commission is now divided on whether the recount data can be used to make a declaration.
The APNU+AFC has put forward that the Order created a new electoral regime and is therefore not in keeping with the Constitution. On that basis, it argued that the votes tabulated during the National Recount cannot be used to declare the results of the General and Regional Elections.
On the other hand, the PPP/C argues that the CCJ endorsed the Recount Order and that the numerical results from the recount should be used to make a declaration.
However, in the submission of his July 10 Elections Report to the Commission, the CEO reminded the Chair that the national recount was not undertaken by Returning Officers and the use of its data would therefore be in contradiction to law.
At Monday’s meeting of the Commission, the Chair rejected this report and directed that the CEO present another report in keeping with the recount data. She added that, if he chooses not to comply, she would request such services from the Deputy CEO.
However, the AG has informed the public that the Elections Commission must be guided by the Constitution, the laws of Guyana and the recent interpretation of the said laws by the CCJ, which state that the Chair or anyone else, cannot invalidate or set aside votes already counted as valid.
YOU’VE CROSSED THE LINE
Also observing the actions of the Chair, Political Scientist, Dr. David Hinds, on a recent APNU+AFC programme, said that the retired Justice seemed to be flip-flopping in her adherence to the law.
He said that when the APNU+AFC had written dozens of letters to the Chair requesting that the anomalies, irregularities and voter impersonation be dealt with by the Commission, it was indicated to the party that this was outside of the remit of GECOM and only an election court could act on such matters.
However, he pointed out that the Chair was quick to reverse this position when she claimed to have invalidated the 10 district declarations, something only an election court can do.
“That is ominous. For a GECOM Chair who has been saying that GECOM does not have the powers of the Court…you’re saying that when one contestant asks you to act on an illegal document – that is the recount, at that time – but when another contestant has no place to go, they come to you and you then are taking on the powers of the Court and setting aside the legal process,” Dr. Hinds said, adding:
“You can’t anymore argue that you are an impartial actor. I am ready to make that conclusion.”
Furthermore, on the matter of the Chair’s threats to bypass the CEO and to resort to the DCEO for a declaration in keeping with what she specified, the Political Scientist said that not only is this unheard of but it is alarming.
He said: “You’ve crossed the line. I have not heard in the English-speaking Caribbean, since our independence, where a public officer has been put in abeyance, not for breaking the law but because he does not submit to what is, in effect, a political demand.”
Dr. Hinds said that the Constitution is very clear about the relation between the Chair and the CEO and it is only through the CEO that a declaration can be made.
He added that, in seeking to conduct his role according to law, the CEO formally requested the Chair’s guidance and even this was withheld by the Chair amidst the crucial, national process.
“He [Lowenfield] goes back to the only place he can get guidance from, which is the Constitution or the Court, and he has done that. So, I find it extremely disappointing that the Chair of the Elections Commission is in collusion with three partisan Commissioners to derail everything.”
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_epaper_07_15_2020