Dear Editor,
A PROBLEM that turns our midwifery into infanticide needs an urgent and thorough solution. I submit that curing, reversing, repairing of the flagrant, and blatant, rampant and pervasive fraud, dishonesty and statutory illegalities that the National Recount has unearthed and exposed is the historic challenge of GECOM/CEO in delivery of a valid and fair 2020 GREs, lest midwifery becomes infanticide. Below I elucidate how and why, curing, reversing, repairing is a constitutional imperative.

Editor, there are two types of evidence: Direct and circumstantial. Most lawyers know that circumstantial evidence can be more weighty, reliable and probative than direct evidence, as circumstantial evidence, unlike the direct evidence of a human testifier witness, is not susceptible to misperceptions lies, and half-truths. And so, in the absence of direct evidence, the law entitiles us to make findings of facts by drawing reasonable interferences, using, of course, our commonsense.

It is this drawing of reasonable inference that has made an alibi a most potent and unassailable defence. So, if an elector, on the credible, reliable and uncontradicted evidence of the Chief Immigration Officer’s (CIO) statement was not in Guyana on March 2, 2020, that elector could not have voted. He/she has an alibi, (that potent defence) were you, ex hypothesi, to be accused of the offence of plural voting at a poll station in Guyana. By parity of reasoning, by that alibi, the only reasonable inference of fact that can be drawn is that that elector was not in Guyana, did not vote, accordingly that vote is a FRAUD; it is not, and cannot be, a valid vote.

This illustration of fraud is, of course, not exhaustive.

But I turn to the real crux of my letter: One, the utter, sheer lies and misrepresentation by the opposition that any Court challenge now can only be by Election Petition; the other, that any declaration can only be in strict compliance with the four-stage process prescribed in the National Recount Order No. 60/2020.

As regards the four-stage process, the reader is referred to a published press release by the Learned Attorney-General for further and better particulars. (GC, Wednesday May 10 under the caption, “Don’t stray from your order”, suffice to say that I concur entirely with the learned Attorney-General.

Editor, there can be no greater nonsense than the pious view of the Opposition that any Court challenge now has to be by Election Petition (EP). I have commented/written, ad nauseum, that until and unless there has been a declaration by the GECOM Chairman, the court would have no jurisdiction to hear an Election Petition. The matter would be, without hesitation, struck out. So, the obvious question is: Why is the PPP/C so much in fear of the CEO/GECOM exhausting the constitutional/statutory procedures where upon, ex hypothesi, EP then comes into the pictures? I will articulate below the reason. In the events which have happened, a question of an interpretation of some provisions of the Constitution (particularly Articles 1, 9, 162 and 177) as regards the PENDING declaration, seems to have arisen. The CEO/GECPM, as the decision-maker, has by necessary implication a jurisdiction to determine for himself/itself what that interpretation is (subject, as always, to review and correction by the court, if wrong).

I mention Articles 1 and 9, as those questions of interpretation would bring into very sharp focus the very questions the PPP/C seems mortally afraid of a determination: What is “valid votes” for the purposes of the “validity of an election of the president” within Article 177, because Articles 1 and 9 are the provisions in our Constitution (entrenched at the deepest level possible, and so invested with the highest constitutional value in our constitutional jurisprudence), which speaks of a “ democratic, Sovereign State”, and so by necessary implication of constitutional law, must require that one of the hallmarks, the cornerstone of this democratic state, i.e. the Presidency, be attained ONLY by the democratic ONLY means of VALID VOTES .

Democracy, and Democratic State does not, and cannot, mean Presidency by fraudulent votes. Every lawyer, every Judge, every academic knows that fraud is the antithesis of valid. And the adjective, “valid”, as per “valid votes”, is surely not merely tautologous. I can write volumes with ample, persuasive, compelling, illuminating and instructive supporting case law authorities on this matter.

But my learned friend, B. Mayo Robertson has eloquently, yet with readable simplicity presented a compelling case that it would be a timorous GECOM/CEO that would condone by giving imprimatur to such pervasive, substantial occurrences of fraud and anti-democratic practices that the National Recount has so transparently and clearly exposed (‘Is GECOM legitimising Fraud” Guyana Chronicle , Tuesday June 9, 2020).

I turn to my point about constitutional imperative. It begins with a recognition that, as my learned friend B. Mayo Robertson has argued, there has been fraud by election officers of a type that substantially affect the results of the election.

Those miscreant election officers, more particularly some POs, can, on the evidence, be reasonably suspected of committing the Common Law indictable offence of Misfeasance in public office (MIPO). Abusing their office, so critical in the context of delivery of a democratic election, they misused the trust reposed in them by the CEO. They have caused harm; they have, in the events of the acts/omissions which have been discovered (but unknowing to the officious by stander-observers) made the 2020 GREs into virtual SHAM AND TRAVESTY. That is heresy.

Yet, the damage and material harm done to the authentic, genuine winner is not irreversible, incurable, irreparable. Let me be clear, I hold no brief for the three Government-appointed Commissioners in GECOM, nor the Chair, nor the CEO; but I make this public-interest comment: Constitutional law principles gives the CEO/GECOM he right, I say duty, to reverse, cure and repair the material harm and damage done. This constitutional principle finds expression in the Latin maxim, ‘Ut res magis valeat quam pereat’, (It is better the thing be valid, than perish) and analogous constitutional law cases (Shrimpton (1945) 69 CLR 613, De Freitas (1995) 49 WIR 70) tells us that the reversal, cure, repair and saving of the 2020 GREs is effected by doing that what is permissible, and necessary to bring the 2020 GREs to what, but for the fraud, it ought to be-in conformity with the Constitution and election legislations. And the obvious question is: How is the conformity achieved in this instant matter of a palpable non-confirmaties? And the obvious answer is: By, and under the election legislations (more particularly Section 96 of ROPA, and Order 60/2020). The CEO is required to, and has a duty, to TABULATE ONLY VALID VOTES. This is a constitutional imperative. The Constitution has to be purposefully interpreted to give content and character to the phrase, “validity of an election” in the context to a “democratic state”. Being (one must emphasize this point) entrenched at the deepest level, the framers could never have intended the tenet of “democratic” to be some hollow, pious aspiration only.

I end with this: It is of the essence of our Democratic State that its government must be, by, of, and for the people. The Constitution framers could never have countenanced, nor could they have remotely intended to permit Presidency by fraud CEO/GECOM’s loyalty is to the Constitution.

It is for the Judges of the Court of Appeal to, finally and authoritatively, if called upon, in their interpretation, define the content and character of the concept “democratic” as in Democratic State”. The Opposition-inspired fraud will boomerang.
And further I say not.

Regards,
Maxwell E. Edwards