–Ulita Moore’s lawyers elated at Appeal Court’s decision not to let CARICOM oversee elections recount

SENIOR Counsel Roysdale Forde and Attorney-at-Law Mayo Robertson have expressed deep satisfaction with the decision of the Court of Appeal that it would be unconstitutional for the Caribbean Community (CARICOM) to usurp the powers of the Guyana Elections Commission (GECOM) by supervising a national recount of all the votes cast at the March 2, 2020 General and Regional Elections.

“We have been vindicated,” Robertson told reporters moments after exiting the Court of Appeal on Sunday. Robertson and Forde are part of a battery of lawyers representing Ulita Moore, a private citizen, who, on March 17, 2020 challenged GECOM’s decision to facilitate a national recount under the supervision of a high-level CARICOM team, based on an agreement made between President David Granger and Leader of the Opposition Bharrat Jagdeo.

On Sunday, the Court of Appeal, while noting that the majority of the reliefs sought by Moore could only be addressed through an Elections Petition, ordered that any agreement in which the supervision of the elections is removed from GECOM and ascribed, or given, to any other authority would be unlawful. That Order was made in favour of one of the declarations sought by Moore.

“Our position, from the ‘get-go’ was that the so-called agreement with CARICOM was unconstitutional, and we have been vindicated on that aspect of the claim,” Robertson said.
“The Court has said that the agreement unlawfully allowed someone else to supervise the conduct of the counting, and that was our position from Day One. So we are very satisfied with that,” he told reporters.

Forde, who was also in agreement with his colleague that the position they’d taken in the matter was justified, said that while the Full Court overturned Justice Franklin Holder’s decision, and ruled that the High Court had no jurisdiction to review the actions of the Elections Commission, as sought by Moore in her Fixed Date Application, the Court of Appeal ruled that the High Court had constitutional supervisory jurisdiction to determine whether the agreement, for which GECOM had intended to act upon, was constitutional.
He said the ruling comes at a time when the Leader of the Opposition is insisting that CARICOM must supervise the recount. “You would have heard over the last 48 hours, I believe, some statement by the Leader of the Opposition that he doesn’t want GECOM involved; he wants it (the recount) to be done by CARICOM,” the Senior Counsel said, while iterating that the Appellate Court’s decision that any such agreement would be in breach of Articles 62 and 162 of the Constitution.

AWAIT CONSEQUENTIAL ORDERS
Further to that, Forde said GECOM should await the consequential orders of the Court before proceeding with the national recount, as agreed upon during last Friday’s meeting of the Elections Commission.

“I believe that GECOM still has to do that, because the final output of the Court is producing its orders. And as of now, we don’t know exactly what are the Consequential Orders that the court will make, and what will be the impact of the orders that the court will make. And we also do not, having regard to what we would have seen from the Orders, whether advice would be tendered to either side, not just my client, as to the fact that they should appeal to the Caribbean Court of Justice,” Forde reasoned.

Last Friday, Kim Kyte-Thomas, the Legal Counsel representing GECOM Chairman, Justice (Ret’d) Claudette Singh, informed the Appeal Court that while the Elections Commission has concretised its decision to facilitate a recount, it will not proceed until the court so rules.
Meanwhile, Attorney-at-Law Anil Nandlall, who is among three lawyers representing Jagdeo, the seven-named respondent, told reporters that it is important to note that while the Court of Appeal has established that the High Court has “narrow jurisdiction” to hear Moore’s case, it did not restore the injunctions, which were discharged by the Full Court.

“Importantly, the recount has not been stopped by the Court, so the recount is expected to progress,” Nandlall said, adding: “The injunctions that were granted by Justice Holder preventing the recount from taking place were not resurrected by this court. Thirdly, the matter is not going back to Justice Holder for his consideration, so the matter has ended here. And the only point that the Court made was that GECOM must be in charge of the recount, and must not give that responsibility to any other agency.”

According to Nandlall, the Appeal Court’s decision does not block GECOM from collaborating with entities such as CARICOM during the execution of the recount. “It doesn’t mean that observers cannot be present,” he said. “All it means is that GECOM is in charge of the process.”

ERRED IN INTERPRETATION
He, however, contended that the Court erred in its interpretation of the agreement among the political leaders, CARICOM and GECOM. “They interpreted the arrangement between GECOM and CARICOM as CARICOM supervising the recount, and GECOM playing a secondary role,” Nandlall said. “Of course, we did agree with that interpretation, because that was not the arrangement; the recount was always going to be done by GECOM, but would have been observed by CARICOM playing a less than active role. That was the arrangement, and I hope that that still is the arrangement when GECOM decides to resume or begin the recount,” he added.

As of Friday, GECOM was still working out the modalities of the recount, and had not yet indicated whether International Observatory Missions (IOM) will be invited to observe the recount.

The GECOM Chair had given an undertaking to the High Court on March 13, after the People’s Progressive Party/Civic (PPP/C), through its associate, had filed contempt proceedings against the Commission, over the alleged failure of the Region 4 Returning Officer, Clairmont Mingo to tabulate the votes cast in his Electoral District, in accordance with Section 84 of the Representation of the People Act. This case has been shelved, and as such no Contempt Order was issued.