GECOM cannot violate the law to facilitate a recount

Dear Editor

ON March 22, 2020, the Guyana Court of Appeal (CoA) vetoed GECOM’s plan to execute the CARICOM pact to recount votes cast in the March 2, 2020 elections. The CoA held that the agreement, which was ratified by President David Granger, Opposition Leader Bharrat Jagdeo and the CARICOM Secretary General, was unconstitutional. This ruling enforced the prohibition in Article 227 Sections (1) and (7) of the Guyana constitution, which mandates that GECOM shall not be subject to the directions or control of any person or authority, and no court shall enquire into the commission’s validly executed work.

Notwithstanding the ruling, acting CoA President, Justice of Appeal Dawn Gregory, alluded to an affidavit by GECOM Chairperson, retired Justice Claudette Singh, which contends that GECOM has the authority to order a post-declaration, countrywide recount under Article 162 (1) (b) of the constitution as well as under Section 22 (1) of the Election Law (Amendment) Act no. 15 of 2000. Justice Gregory surmised that GECOM has broad powers under the law, as the chairperson asserted, but that the exercise of that power to conduct a recount is not excluded from judicial review.

Article 162: Section (1) that (B) of the Guyana constitution mandates that: “The Elections Commission shall issue such instructions and take such action as appear to it to be necessary or expedient to ensure impartiality, fairness and compliance with the provisions of this constitution or of any act of Parliament on the part of persons exercising powers or performing duties connected with or relating to the matters aforesaid.”

Section 22 of the Election Law (Amendment) Act no. 15 of 2000 (1) and (2) states as follows: “(1) If any difficulty arises in connection with the application of this Act, the Cap. 1:03Cap. 19:08 Representation of the People Act or the National Registration Act or any relevant subsidiary legislation, the commission shall, by order, make any provision, including the amendment of the said legislation, that appears to the commission to be necessary or expedient for removing the difficulty; and any such order may modify any of the said legislation in respect of any particular matter or occasion so far as may appear to the commission to be necessary or expedient for removing the difficulty.”

In my view, Article 162 (1) (b) authorises GECOM to instruct persons within its constitutional remit, or to take any action necessary, to ensure that an election is administered fairly, impartially and in compliance with, and fidelity to, extant law. It doesn’t not empower GECOM to make new laws, or amend, nullify, disregard or supersede existing law, in order to abrogate other statutes.

Therefore, I believe that GECOM cannot use Article 162 (1) (b) to invent an extra constitutional procedure, which circumvents an election petition, in order to appease an aggrieved contestant in an election who is in effect challenging the declared results. GECOM must enforce and abide by the applicable laws that were enacted by Parliament to govern elections. Such laws include the Representation of the People Act and the Elections Law Amendment Act.

Moreover, Section 22 of the Election Law Amendment Act can only be invoked when a difficulty arises in the “application” of the elections law. It certainly doesn’t appear to invest GECOM with powers to make “ex post facto” regulations to arbitrate a challenge to the elections results after those results were already declared. This would be repugnant to the constitution. That new regulation will change the provision of the statute which expressly mandates that the mechanism for challenging elections is an election petition.

A difficulty, as envisaged in the legislation, would be a situation where, for example, some returning officers (ROs) adopted a narrow interpretation of how an X should be made on the ballot. Therefore, during counting, five ROs’ rejected ballots where the X touches an inner line of the box, while the other five ROs counted said votes as valid. In this instance, the commission could pause the counting countrywide and make an order that specifically amends the legislation to state that only an X that extends beyond the outer line of the box shall be deemed invalid. This order would indeed eliminate a difficulty that arose, and will assure fairness, impartiality and equal application of the law.

However, GECOM is not seeking to remove a difficulty. It is attempting to vitiate the already executed declarations by the 10 returning officers (RO). To accomplish this, it will have to make an ex post facto order that will alter Sections 83 and 84 of the Representation of the People Act, singularly to settle the PPP’s disputing of the election results. The new order will abrogate the provisions of the Election Law Amendment Act, which mandates that challenges to election results shall only be adjudicated by an election court, pursuant to an election petition.

The elections process does not only involve the rights of the PPP and its supporters. Other voters and political parties also have rights that must be also protected. The right to vote as well as to have your votes counted and declared in accordance with current law are fundamental rights. GECOM cannot harm these rights with “post factum,” rules to govern the process after it has been completed. This is dangerous and undemocratic.

It has been one month since the election results were declared by the 10 returning officers in accordance with the law. The chief elections officer (CEO) has thereupon submitted his report with the aggregated results, as declared by the 10 ROs, to the chairperson in accordance with Section 96 (1) of the Representation of the People Act. According to Section 96 (2) of said Act, the CEO’s report “shall be the basis for the commission to declare and publish the results.”

But contrary to the law, there has been a 30-day standstill. The aggregated results have not been declared and published as required. This is not how the law envisages the electoral process to work. This pause is lawful. Clearly, the PPP is seeking to challenge, and if possible overturn, the declared results without filing an election petition. This is unconstitutional. The law only provides for a countrywide recount in the form of a ballot audit, after the declaration and installation of the President.

I believe in the rule of law and free and fair elections. I believe every legally cast vote must be counted. I also believe that, given the PPP’s challenge to the results, every vote, in every ballot box, in every region, should be recounted. I however reject the notion that GECOM must intentionally break the law to achieve this purpose. The rule of law is paramount to any person, political party or state agency. No one is above the law. GECOM is not above the law. GECOM must therefore follow a lawful process for a recount.

Rickford Burke
President
Caribbean-Guyana Institute for Democracy (CGID)

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