Dear Editor
THE Chairperson of GECOM rejected the case made by the three APNU+AFC commissioners that the March 2 elections be annulled on the grounds that the elections were not credible. The commissioners’ case followed the report by the chief elections officer (CEO) to the full commission in which he reported that given the widespread irregularities unearthed by the recount/audit, he could not recommend a winner. He further reported that he could only validate approximately 40% of the votes in the boxes. In rejecting both the CEO’s report and the APNU+AFC commissioners’ case, the chairperson submitted that GECOM was not a court and as such cannot pronounce on the credibility of an election. She therefore ordered the CEO to prepare a report using the tabulation of the votes in the boxes.
Not unexpectedly, her ruling and order have been challenged in court. Eventually, the court would determine whether the chairperson’s reading was correct. We have noticed that the chair and the various parties to the case before the Court of Appeal have cited various articles in the constitution to bolster their respective arguments. But as is usually the case, one section or clause of a constitution cannot be read in isolation from others that address the issue at hand. Further, constitutions are often not explicit about many issues, thus leaving it to lawyers and judges to interpret what the framers meant. Hence, the concepts of “expressed powers” (those which are clearly expressed in the constitution) and “implied powers” (those which are implied from what is written in the constitution).
It is my view that some lawyers and political commentators are arriving at conclusions about these elections without reference to the changing dynamics therein over the last 16 weeks. In other words, they are ignoring aspects of the process as if they never occurred; they are treating the elections as a normal uneventful exercise. But how can an election that has not thrown up a declared winner after 16 weeks be an uneventful exercise? I believe that the recount order set in train by GECOM and signed on to by the electoral contestants fundamentally changed the legal and political dynamics of the elections. The remainder of this letter will introduce some points which I think that the partisan warriors and the seemingly non-partisan civil society elements should ponder.
When the PPP and others detected mis-tabulation of votes in Region Four, they made a huge cry over it—they weaponised it. All the various forces latched on to it; they gave it two names—Mingo and Rigging. The names stuck. The PPP went to court and the court ruled that GECOM could correct the mis-tabulation. The GECOM chair opted for a recount. The two major leaders agreed, and others gave their blessings. But this is where things changed. The Recount Order which became law moved the contention from just the mis-tabulation of the Region Four votes to the credibility of the entire elections. Once that was done the dynamics of the electoral impasse changed forever. A mere recount/tabulation was now changed to a recount/audit. It meant that any fraud that was carried out by the PPP or the Coalition would potentially be detected within a legal framework. In effect, what GECOM did was to turn the recount into an election petition before a declaration of the winner.
By the time the recount ended, the mis-tabulation of the Region Four votes by the returning officer was confirmed. But along with that, a whole host of other irregularities and anomalies were detected and most were confirmed. This potentially compromised many more votes than were compromised by the Region Four mis-tabulation. In effect, the outcome of the recount/audit showed that while the PPP ‘s Region Four votes were restored, it lost far more than that on account of manipulation of the process on polling day.
By ordering a declaration based on the numerical tabulation minus the irregularities unearthed during the recount, the GECOM chair is ignoring her own law. Further, she is guilty of giving redress to one party, the PPP, while denying the other contestant, the Coalition, the same. Her argument that GECOM is not a court and that the Coalition should take its case to court via a petition is inconsistent and discriminatory. When the PPP raised the question of Mingo’s mis-tabulation, she did not tell that party to take its case to court—she agreed to turn GECOM into a court via the Recount Order to investigate the PPP’s charge. Now when it is time to investigate and pronounce on the Coalition’s charges, she divests GECOM of its status of a court.
Based on reports she appears to acknowledge serious defects as unearthed by the recount/audit just as the CARICOM Report did, but like CARICOM she is prepared to make a declaration despite these defects. Such action flies in the face of natural law and justice and constitutional law. Further, it is an example of political immorality that is more grievous than the fraud perpetrated by both contestants.
Under normal circumstances a valid and invalid vote is an unspoilt and spoilt ballot, respectively. But the Recount Order changed that definition. According to the order which I cannot quote here for want of space, the definition of a valid vote is a vote that is reconciled with the necessary supporting statutory documents. Now to GECOM not having the power to annul an election. Yes, there is no Expressed Power to that effect in the constitution. But the constitution gives GECOM the power to “issue such instructions and take such action as appear to it necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this Constitution…”, I am arguing that implied in that article is the power to annul an election if GECOM deems it inconsistent with those standards. Further, if GECOM can make a law to determine the credibility of an election, then inherent in that law is the power to act if the election is not deemed to be credible.
Let me end with this quote from Justice Singh’s affidavit justifying the recount/audit: “Thus , once there is evidence that the electoral process was compromised, then to ensure impartiality, fairness and compliance with the constitution, the commission is constitutionally mandated to intervene to ensure public confidence in the electoral process.”
Regards
David Hinds
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_e-paper_6-21-2020