GUYANA’s Chief Election Officer (CEO), Keith Lowenfield, has been ordered to prepare a report in keeping with Section 96 of the Representation of the Act, Chapter 1:03 – a move that effectively paves the way for the official declaration of the Election results by the Chair of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh.

The decision was arrived at on Tuesday, following submissions by the Government and Opposition-nominated Elections Commissioners on whether GECOM should nullify the elections due to the anomalies and cases of electoral fraud or use the data contained in the CEO’s National Recount Report to declare the results of the General and Regional Elections held last March.

It was after those deliberations that Justice Singh took a decision to have the CEO prepare a report to ascertain the results of the elections under Section 96 of the Representation of the People Act, Chapter 1:03 and in keeping with the Order that had triggered the National Recount of the ballots cast at the elections held on March 2.

While the CEO, in his Report on the National Recount, had indicated that the Elections were not credible due to 4,864 cases of voter impersonation and more than 2,000 anomalies, Justice Singh, according to GECOM’s PRO, asserted that the Commission does not have the powers of a Court of Law to examine and re-examine witnesses or to procure official documents to determine the truth of the allegations contained therein.

“The Chairperson posited that she is of the opinion that some of the allegations are of a serious nature and must be addressed. However, Article 163 (1) (b) of the Constitution confers on the High Court the exclusive jurisdiction to determine the validity of an election,” Ward said in a statement on Tuesday, moments after the decision was taken.

It was explained that while GECOM resorted to Article 162 (1) (b) of the Constitution as the legal cover to facilitate the National Recount in the interest of fairness and impartiality, it does not have jurisdiction to adjudicate on the legality of the elections. “In this regard, GECOM could not have thereby clothed itself with jurisdiction to establish itself as a Court of Law to determine credibility of an election when Article 163 (1) stipulates that the High Court shall have exclusive jurisdiction to determine the legality of an election,” Ward said.

According to her, Justice Singh was keen on noting that the Commission cannot arrogate onto itself a jurisdiction to annul an election since no specific power was conferred on it under Article 162 (1) (b).

“A perusal of Articles 162 and 163 of the Constitution shows that the Articles clearly and sharply separate the functions of GECOM and the High Court respectively in matters of electoral process,” the GECOM PRO said.

She said in delivering the landmark decision to the Commission, Justice Singh referenced Article 163(1)(b) then Article 71 (1)(b) of the 1996 Constitution which received judicial consideration in the case of Gladys Petrie v. Attorney General (1968).  In that case, she said, the court had to consider: “Whether there is some general illegality either affecting the whole election or whether there has been some specific illegality being either an act or an omission which affects the results of an election.”

Further, it was noted that Parliament has made provision for the determination of questioning the validity of elections by way of The National Assembly (Validity of Elections) Act Chapter 1:04 of which the long title reads:- “An Act to provide for the determination of questions relating to the validity of elections of members of the National Assembly under a system of Proportional Representation.”  The marginal note to section 3(1) of the Act enacts “Method of questioning the validity of election.”

According to section 57(3) of the Interpretation and General Clauses Act, Chapter 2:01, the marginal note shall be construed and have effect as part of the Act.

Section 3(1) of the Act provides, “Any question referred to Article 163(1) (a), (b) and (c) of the Constitution may, in respect of an election referred to in Article 60(2) of the Constitution and with a view of securing appropriate remedial orders, be referred to the court and shall thereupon be determined by it in accordance with this Act and every such reference shall be by petition (hereafter referred to as an election petition).”

In light of the foregoing and in keeping with Order No. 60 of 2020 and its addendum dated May 29, 2020, Justice Singh requested for the Chief Election Officer to prepare and submit to the Commission a report to ascertain the results of the elections under Section 96 of the Representation of the People Act, Chapter 1:03. The CEO is expected to present the report to the Commission soon.