…GECOM assures Appellate Court ahead of decision on jurisdiction

THE Court of Appeal on Sunday will hand down its ruling on whether the court has jurisdiction to hear an application challenging the Guyana Elections Commission’s (GECOM’s) decision to facilitate a national recount against the background that, declarations have already been made in all 10 electoral districts. Though GECOM on Friday concretised its decision to conduct a national recount, it has assured the Appellate Court that the recount will not commence before its ruling.

“I have been instructed that a decision was made to conduct a recount; however, the execution of that decision and the process will not commence before Sunday,” Legal Counsel Kim Kyte-Thomas –- the attorney representing GECOM Chairperson Justice (Ret’d) Claudette Singh–- told the Appellate Court.

Justice of Appeal Dawn Gregory, one of three judges who took the bench on Friday, announced the date for the ruling and sought clarity on GECOM’s decision, after the court was approached by Senior Counsel Roysdale Forde for interim orders to stay the decision of GECOM, until a final determination is made. The Appellate Court had convened on Friday to hear arguments on whether the Full Court erred when it ruled that the court has no jurisdiction to review the actions of the Elections Commission outside of an elections petition. On March 17, 2020, Ulita Moore, a private citizen, secured four injunctions from the High Court blocking the elections commission from facilitating a national recount of all the votes cast at the March 2 General and Regional Elections, until the hearing and determination of her substantive application. But while High Court Judge Franklin Holder established that the court had jurisdiction, the Full Court on March 31 discharged the injunctions and dismissed the application on the grounds that any challenge to decisions made by the elections commission could only be done by way of an elections petition. Moore has since appealed that decision.

Before the commencement of oral arguments on Friday, Forde –- one of the attorneys representing Moore –- drew the Appellate Court’s attention to an affidavit filed earlier that morning and sworn to by Moore. Attached to that affidavit was a press statement issued by GECOM on Thursday, April 2, 2020. In that statement, GECOM signalled its intention to decide on the way forward, while hinting that a recount would likely be done due to a commitment given to the High Court by its Chair, Justice (Ret’d) Claudette Singh.
Forde told the court that given the history of the case, one would have thought that the elections commission would have awaited the ruling of the Appellate Court.

“We expected your Honours that the elections commission would recognise that this [application] constitutes a continuation of the legal proceedings — an effort to have these issues comprehensively resolved by the judicial system. With regret your Honours, the approach taken by the Chairman of the Guyana Elections Commission and the Commission as a whole seems to collide and runs contrary to our understanding that this court is seized with this matter at this stage,” the Senior Counsel told the Appellate Judges.
It was against that background that Forde pleaded with the Appellate Court to issue interim orders pending the hearing and determination of the motion, which was engaging the attention of the court at the time. This, he posited, would remove the risk of any “great prejudice” being done to the appellant’s case.

However, Kyte-Thomas told the court that she was not in possession of the affidavit presented by Forde. “I certainly was not aware of this affidavit and in respect to that I would need to peruse it and take instructions from my client,” she told the court.
Pressed for a greater response in relation to the contents of the statement issued by GECOM, Kyte-Thomas iterated her earlier position. “In respect to such important issue I would prefer to have clear instructions from my client because like any other Guyanese, these are things I simply read in the press and I would prefer to have instructions,” she said.

Appearing via Skype, on behalf of Leader of the Opposition Bharrat Jagdeo –- the seventh named respondent — Trinidad’s Senior Counsel Douglas Mendes told the court that while the attorneys representing Moore made an application for leave to appeal, there was no application filed before the Appellate Court to stay or for an interim injunction pending the appeal. He told the court that the elections commission’s decision to meet was no secret, and as such, an application should have been made to the court in writing and legal arguments would have had to be put.

Nonetheless, he submitted to the court that based on the Full Court’s decision, “there is no real prospect of success for the appeal,” and as such, there is no proper basis for interim orders to be issued.
In response, Forde said the oral application arose as a result of GECOM signalling its intention to decide on the recount. Added to that, the Senior Counsel said it would appear from the press statement that the elections commission would have rejected the report on results submitted to the Chair by the Chief Elections Officer Keith Lowenfield. Once all of the declarations were made, the chief elections officer compiled and submitted his report to the chair on March 14; however, it was not placed before the commission.

In the statement, GECOM’s Public Relations Officer (PRO) Yolanda Ward said: “A motion was subsequently tabled by the Commissioner [Vincent] Alexander for the Commission to consider the report of the ehief Elections officer (CEO) on the results of the elections. However, Justice Singh explained that she would be unable to allow the CEO to present his report at this point in time since a contempt motion brought by the People’s Progressive Party restrains her from so doing. In relation to this matter, she had given an undertaking to the court to facilitate a recount at the level of the commission.”

Forde pointed out that Moore in her application before Justice Holder, had argued that the CEO’s report should have been tabled before the commission for its consideration. Brushing aside the submissions by Mendes that a written application must be made, Forde said that it is “fit and proper” for the Appellate Court to make interim orders at this stage. A written application, he said, would only serve to prolong the resolution of the issues currently before the court.

“Your honours, even though this is an oral application, and it is not a written application, this court is seized with its own inherent authority and jurisdiction to make this order of its own motion without the applicant or the respondent seeking to intervene in anyway to have this order made,” Forde argued.

Justice Gregory, who sat alongside Justice of Appeal Rishi Persaud and High Court Judge Brassington Reynolds, said the court has taken note of Forde’s concern that its decision may be rendered merely academic if the statement is accurate. Nonetheless, the Appellate Judge said the Court will rely on Legal Counsel Kyte-Thomas on decisions taken by GECOM.
It was near to the end of the more than two-hour-long hearing on the substantive issue of jurisdiction, that Kyte-Thomas disclosed that a decision was taken by GECOM for a recount; however, the recount would not commence before the court rules on Sunday.

Outside of the Court of Appeal, Kyte-Thomas iterated GECOM’s position. “The execution of that process [recount] would not commence before Sunday, so that neither party has anything to be fearful about in respect to any prejudice,” she told reporters.

Pleased with GECOM’s decision to await the ruling of the court, Forde told reporters that Grenadian Queen’s Counsel Dr Francis Alexis and Trinidad’s Legal Counsel Keith Scotland made strong oral submissions on behalf of Moore. He believes that the Court of Appeal will rule in their favour.