By Gary

(Retired Rear Admiral and Attorney)

Editor, having regard to the recent decisions of the Guyana Full Court and the Guyana Court of Appeal in the Ulita Moore matter, GECOM ought not to rely on its own decision to do a national recount. To be clear, the writer accepts that part of the Court of Appeal’s decision which held that it was unlawful for GECOM to have decided to do a national recount under the “supervision” of CARICOM. We therefore speak here of a national recount simpliciter. And for the purpose of this submission, a national recount is what remains from GECOM’s unlawful decision to conduct a supervised national recount. We also observe that the Court of Appeal, in holding, in part, for Ulita Moore, separated the question of jurisdiction from that of constitutionality. It is in that vein that we render to further examination GECOM’s decision to do a national recount since it touches on its constitutionality as argued by Ulita Moore. Consequently, we are of the view that Ulita Moore enjoys an unfettered constitutional right to challenge the constitutionality of GECOM’s decision and, more particularly, that her matter be heard expeditiously. To date, the question of the constitutionality of GECOM’s decision on a national recount has not been heard. Both the Full Court and the Court of Appeal ruled that that is a matter for an elections petition. Juxtaposing the decision of these two courts with Ulita Moore’s right to be heard and GECOM’s decision to do a national recount present a quagmire for GECOM that becomes readily apparent.

Recount/ Count

Editor, there are many reasons why GECOM should not rely on its own decision to do a national recount. In the first instance, the Court of Appeal’s decision has justified the nationally held position by HE the President to abide by the constitution and the rulings of the court. In this regard, it is important that GECOM’s does not act precipitously thereby preventing current and future court proceedings. In other words, GECOM must act in a manner that does not stymie the elections petition process which the courts have supervision over in order to bring finality to elections challenges. As alluded above, the matter whether or not GECOM acted constitutionally in agreeing to conduct a national recount is still to be heard and therefore not determined. Consequently, GECOM ought not to rely on its decision to conduct a national recount of any or all electoral districts since its constitutionality is yet to be determined via an elections petition. In any event, a national recount is properly done during an elections petition, having regard to the fact that this matter has moved beyond whether the RO of Electoral District #4 followed Section 84 of the Representation of the People Act in his tabulation, to a dispute of the entire 2020 Elections. For the avoidance of doubt, GECOM has a completed tabulated result that shows the APNU+AFC as victorious. This is disputed by the PPP. In this regard, the Full Court and the Court of Appeal have ruled that Art 163 (1) (b) (i) and (ii) of the Constitution of Guyana provides for disputed elections to be settled by an Elections Petition.

Secondly, GECOM’s supervisory and intervention powers under Article 162 of the Constitution to ensure impartiality, fairness and compliance with elections matters must be seen as operating within the ambit of the law, in particular, the Representation of the People Act where there is provision for counts and recounts and which have already been statutorily performed by the various Returning Officers. To conduct a recount under the Representation of the People Act is to do a thing that has already been done. To attempt to conduct a recount outside of the Representation of the People Act is to act unconstitutionally. This is quite different from an elections audit which was done in the post 1997 National and General Elections and examined in the elections petition filed by Esther Perreira. We submit, that notwithstanding the good intentions of parties, in this case, HE the President, CARICOM and GECOM, parties cannot come together and intentionally or unintentionally breach the law.

Thirdly, a similar circumstance was examined in the Ether Perreira case of 1998 where that court vitiated the 1997 Guyana General and Regional Elections. Madame Justice Claudette Singh, as she then was, held, on the issue of the effect of Act 22 of 1977 which introduced the concept of “no card, no vote”, held that “[t]here is nothing wrong with Parliament enacting such legislation, but any such law ought not to be inconsistent with the Constitution”. The distinguished Judge went on the hold that “…no political party can arrogate unto itself the power to barter away … the constitutional rights of the electorate”. Similarly, we now have a case of “no national recount, no declaration”. In this regard, we submit that the political parties, CARICOM and GECOM cannot come together and breach the constitution of Guyana. Keep in mind that a recount is grounded in law as per the Representation of the People Act and is a procedure governed by the Returning Officer. To be clear, a national recount, yes, but via an elections petition.

Would GECOM deny Ulita Moore her right to challenge its decision in an elections petition?

Editor, how then would Ulita Moore be able to have her matter heard via an elections petition as ruled by both the Guyana Full Court and the Guyana Court of Appeal? For there to be an action for an elections petition there must be a completion of the electoral process. For there to be a completion of the electoral process there must be a declaration of the winner and a declaration and swearing in of the President. In support of this statutory process, the Full Court ruled that “The elections process must swiftly and efficiently take its course so as to enable elections results to be declared”. To be clear, we submit that in order for Ulita Moore to be able to have her matter heard GECOM must complete the electoral process. Since speed and finality are of the essence, the Full Court also held that “Finality does not mean lawfulness. Lawfulness can always be challenged by way of an Elections Petition”. Swift completion of the electoral process is therefore the desire of both courts. This is now a matter for GECOM to deal with expeditiously.

For the avoidance of doubt, GECOM has a completed tabulated result that shows the APNU+AFC as victorious. This is disputed by the PPP. In this regard, the Full Court has ruled that Art 163 (1) (b) (i) and (ii) of the Constitution of Guyana provides for disputed elections to be settled by an elections petition. Further, Ulita Moore is not disputing the 2020 elections results. She is challenging GECOM to declare that her political party won the 2020 elections and therefore no recount is necessary. Herein lies the quagmire. In order for Ulita Moore to file an elections petition GECOM must complete the electoral process by declaring a winner. And in order for GECOM to proceed with a national recount, it has to deny Ulita Moore her constitutional right to have her matter heard before it operationalises that decision. We submit that, in the interests of justice, GECOM needs to receive the CEO’s report and complete the elections process now. To rely simply on an undertaking given to do a national recount as a reason for not considering that report falls short of any statutory foundation since such an undertaking has none in law.

To be clear, GECOM cannot perfect its decision to do a national recount by actually doing a national recount and then pave the way for Ulita Moore to challenge afterwards. Finally, on this point, for GECOM to conduct a national recount and possibly introduce different or the said results would create further dispute, exacerbate the post-election tension and ultimately such matters would still require the hearing of elections petition in the High Court to resolve them. Any national recount by GECOM would be precipitous.

PPP Double Speak and Open Threats

It is clear from earlier and more recent uttering from the PPP that nothing short of a decision that results in a victory for it would suffice. The PPP’s most recent attack on GECOM came from its leader a few days ago when he said that his Party doesn’t trust GECOM. The PPP is also saying that they do not trust the statutorily appointed RO of Region 4 and now demands that he not be part of GECOM’s electoral process. Editor, how more sinister can the PPP become? GECOM needs to stand its ground and reject, in a public manner, these inferences and open attack on its integrity as a constitutional body. Having regard to the Guyana Court of Appeal’s decision, how can GECOM even conduct a national recount when the Leader of the PPP has declared a no confidence in GECOM? The PPP doesn’t want a national recount. The PPP wants to set the stage for national electoral confusion. We remind our readers that when refer to a national recount, we see such a recount occurring in a post-election petition. The nation has, on record, HE President Granger declaring on numerous occasions that he will abide by the decisions of the Courts. We are yet to hear such an undertaking coming from the Leader of the Opposition.

Finally, the decisions of the Full Court and the Court of Appeal pave the way for GECOM to expeditiously complete the 2020 Elections process explained above and leave all other matters for an Elections Petition.