…Court orders GECOM to return to verification process of Region 4 votes
… nullifies declared results; says RO must decide way forward;

By Svetlana Marshall
CHIEF JUSTICE Roxane George-Wiltshire has ruled that the declaration of votes made by the Region 4 Returning Officer, Clairmont Mingo, was unlawful, on the grounds that there was substantial non-compliance with Section 84 (1) of the Representation of the People Act when the Statements of Poll (SOPs) for District 4 were tabulated. She then ordered that the verification process, which was interrupted, be resumed or restarted.

The Chief Justice handed down her judgment in the High Court on Wednesday in the case – Reeaz Holladar vs the Returning Officer, Clairmont Mingo; the Chief Elections officer, Keith Lowenfield; and the Guyana Elections Commission (GECOM), before a packed courtroom.
Last Thursday (March 5, 2020) amid loud screams of ‘No’ at GECOM’s Command Centre, Mingo had declared the total number of votes for each List of Candidates in his District for the General and Regional Elections, but Justice George-Wiltshire, after analysing the submissions made by both sides, concluded that Section 84 of the Representation of the People Act, Chapter 01:03 was breached by the Returning Officer. It was explained that while 421 of the 879 SOPs for District 4 were publicly tabulated, there was no evidence to suggest that the remaining 458 Statements of Poll were added in the presence of persons entitled to be there as required by law.

“…the declaration made on the 5th March, 2020 by the Returning Officer for District 4 of the total votes cast for District 4 was unlawful, as being in breach of Section 84 (1) of the Representation of the People Act, Chapter 1:03, and is null, void and of no effect,” Chief Justice George-Wiltshire said as she handed down one of the orders sought by Holladar, on behalf of the People’s Progressive Part/Civic (PPP/C). The ruling, in effect, bars GECOM from making a final declaration of the results for the General and Regional Elections, unless and until all of the SOPs for District 4 are tabulated in the presence of those persons entitled to be there in accordance with Section 84 of the Representation of the People Act.

“It is also ordered that the Guyana Elections Commission cannot lawfully declare the results of the Elections for March 2nd, 2020 unless and until the Returning Officer or Deputy Returning Officer for District 4 complies with and or ensures compliance with the provisions of Section 84 (1) of Chapter 01:03,” the Chief Justice said as she granted another order sought by Holladar.

Section 84 (1) states: “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 or attend, ascertain the total votes cast in favour of the list in accordance with the Statements of Poll, and thereupon publicly declare the votes recorded for each list of Candidates.” Members of the Commission, duly appointed candidates and counting agents are among persons covered under Section 86 (1) of the Act.

BOUND BY LAW
In justifying her position, the Chief Justice first established the fact that the office of the Returning Officer is statutory in nature and therefore requires he or she to act in accordance with the laws that govern that office, in this case, Chapter 1:03. Failure to do so can result in the Court exercising supervisory powers to direct that there be compliance with the Law. It was noted that the process outlined in Section 84 is meant to engender transparency and accountability.

Transparency
Referencing to the case – Joseph Hamilton v Guyana Elections Commission & Others – a matter adjudicated by Chief Justice Desiree Bernard, as she then was, Chief Justice George-Wiltshire took note of the fact that Section 84 was considered not to be mandatory with respect to the timeframe for the additions of SOPs. “I agreed with Chief Justice Bernard that the timeframe for the commencement of the adding of the votes as recorded in the Statements of Poll is directory as this is to be done as soon as practicable,” Chief Justice George-Wiltshire said while further agreeing that the presence of all persons listed in Section 86 (1) is not required during the addition of the SOPs. However, she said in this era that calls for greater transparency in the actions of public officials, it is mandatory that if persons entitled to be there are present, the addition of the SOPs must be done in their presence.

She noted that non-compliance with Section 84 (1) in this regard could result in the process being invalidated. In the interest of transparency, the Laws provide for safeguards such as the posting of SOPs as well as public tabulation of SOPs. “While the failure to post the Statements of Poll in a place of poll, maybe considered directory, as failure to do so would not affect the results recorded; the failure to comply with Section 84 (1) has much more serious consequences,” Chief Justice George-Wiltshire pointed out.

Against this background, the Chief Justice said that the decision boils down to the facts disclosed in the Affidavits submitted by the parties in the matter.

Senior Counsel Neil Boston and Attorney-at-Law Robin Hunte – the attorneys representing the Returning Officer, the Chief Elections Officer and GECOM – submitted a total of six Affidavits. Those included an Affidavit in Defence from Clairmont Mingo and Affidavits in Support from James Bond, Aubrey Norton, John Adams, Nicola Trotman and Roxanne Myers. In the case of the applicant, an Affidavit was submitted by him through his lawyers – Anil Nandlall and Senior Counsel Douglas Mendes. Attorney-at-Law Savitri Sonia Parag was among a number of other persons who submitted Affidavits in support of Holladar.

Flawed process

The Chief Justice said while Section 84 of Chapter 1:03 outlines provisions for the Returning Officer to tabulate the SOPs in the presence of the persons listed in Section 86 (1), there was evidence of substantial non-compliance. “In my view, and I hold, and the facts disclosed, that a significant part of the addition of votes from the Statements of Poll was done in the absence of persons who are entitled to be there, that is, in the absence of elections officers, members of GECOM, duly appointed candidates, counting agents and others with good reason to be present, that is, for example, elections observers, and as such, the process would have been flawed, and there has been a breach of Section 84 (1),” the Chief Justice explained.

In his oral submissions, Senior Counsel Boston, on behalf of Mingo, had argued that there was “substantial compliance,” and as such the “principle of the presumption of regularity should be applied,” but the Judge rejected this line of argument.

“There cannot be substantial compliance when the tabulation of 458 Statements of Poll has not been accounted for. The Returning Officer said nothing about how many Statements of Poll had been added onto when he fell ill and left. He did not refute the evidence of the applicant in this regard, that 421 Statements of Poll had been completed, and therefore 458 remained to be completed,” the Chief Justice submitted.

Added to that, she said it was incumbent on the Returning Officer to ensure that the addition was done in the presence of persons entitled to be present. Citing the Affidavit submitted by Parag, the Chief Justice said there is evidence that such persons were available to participate in the process at the time of the tabulation but were not included during the latter half of the process.

It was noted that while the Returning Officer relied heavily on GECOM’s Senior Clerk, Michelle Miller to detail what had happened, no affidavit was submitted by her to outline how the process unfolded under her supervision. The Chief Justice noted that none of the persons who submitted affidavits in support of the respondent accounted for what happened with the tabulation process from the time the Returning Officer left for the hospital around mid-day on March 4, and unto his return later that day.

“I concluded that in the absence of credible evidence about [what] occurred after the Returning Officer left for the hospital, unto the time he made the declaration, then the presumption of regularity cannot apply. It cannot be presumed based on the Returning Officer’s Affidavit that the process was regularly conducted, that is, that there was addition of the Statements of Poll and in the presence of persons entitled to be there; thus I hold that there has been a breach of Section 84 (1) in these regards,” the Chief Justice said.
Such breaches, she emphasized, cannot be condoned.

RO MUST DECIDE ON THE WAY FORWARD
Meanwhile, the Chief Justice made it clear that Chapter 1:03 does not address the issue of verification and or reconciliation of the SOPs as suggested by Parag in her Affidavit. “It does appear to me that there is a misunderstanding as regards operationalising Section 84 (1),” she said.

It was noted that while Section 84 (1) Subsection (1A) (a) and (b) clearly provide for the correction of mistakes in the Statements of Poll, that subsection does not outline how a material error or a mistake is to be brought to the attention of an Elections Officer or a Returning Officer. “I do not conclude that the Act provides for verification or reconciliation in this sense. This is especially in the context of the well-known fact that 10 political parties contesting the 2020 Elections in District 4, if each were to object, moreso in a vociferous or hostile manner, the tabulation process would definitely be delayed, and indeed there may be risk that it is not completed,” she reasoned.

While duly appointed candidates may raise concerns, and those concerns ought to be reasonable, the Chief Justice made it clear that it is not for persons to stop the tabulation process and ultimately the declaration of the votes because the RO did not address their concerns. It is for the Returning Officer to determine how.

Only GECOM SOPs
It was noted that aggrieved persons, can, among other things, file an Election Petition following the declaration of the results for the General and Regional Elections. The Chief Justice was also keen on noting that the only official documents that the Returning Officer can consider are the Statements of Poll that have been transmitted to him by the Presiding Officer of the various polling stations pursuant to Section 83. “Any Statements of Poll, in the possession of agents of political parties or others would not be such,” she made clear.
In handing down the ruling, Chief Justice George-Wiltshire ordered that the addition of the SOPs recommence no later than 11:00hrs today (March 12, 2020). “It would be for the Returning Officer and or the Deputy Returning Officer to decide whether in the interest of transparency, the addition process should be restarted or continued where it was left off. It would also be for these functionaries to determine the best method of tabulating the Statements of Poll,” she stated, as she warned against any attempt to usurp the powers or the Returning Officer or his deputy.