CEO report only evidentiary basis for GECOM chair declaration

Dear Editor,
IN the 2020 General and Regional Elections, judicial, political, regulatory mistakes of portentous historic ramifications have been made. Our deeply entrenched democratic sovereignty has been unwittingly subverted, impaired, diluted and watered down. And the constitutional imperative of presidency, only by VALID VOTES, seems poised to become presidency by fraud, aided and abetted by non-commonsensical, bizarre, blinkered view of observers. Hopefully, my perception is but an illusion, a mirage.

Editor, as a nationalist, patriot, intellectual, learned Guyanese, I refuse to be persuaded one jot or iota by the bizzare and asinine view of any observer that the bare numerical numbers of votes/ballots cast presumably on a one – living- present elector; one – vote basis, as per the recount are acceptable, when quite to the contrary first impressions have been found to be wrong, to be against the weight of the evidence, rebutted, as the constitutional principles of transparency, VERIFIABILITY, accountability, accuracy, credibility and efficiency screams at us, imploring us (Guyanese), that those bare numerical numbers are not acceptable, cannot be credible, must not be accepted. In the language very familiar to lawyers, judges (past and present) and perhaps intellectuals of other professions: RES IPSA LOQUITUR (i.e. the thing speaks for itself). Andin this case, that thing, is the massive, pervasive irregularities and statutory illegalities.

The CEO (Keith Lowenfield) was not, is not, pretending to act on no evidence. The evidence is there for all (except those with some politically convenient blinkered vision) to see. None of the evidence adduced at the national recount is imagined, or hypothetical. They are all real, relevant and admissible by the CEO in the discharge of his constitutional and statutory functions to prepare a report for the ADVICE of GECOM. The opposition had ample time to, if they could, proffer contradicting evidence. They have not dared to proffer any. All they have bombarded us with is empty rhetoric! GECOM, like, the CEO, can only act on evidence. The Chair has no source of relevant, admissible evidence on which to base her declaration other than that of the CEO’s, report. This limitation I submit, is manifestly and pellucidly clear from any sensible reading of article 177 (2) (b) of the Constitution read witch section 96 of RoPA (“valid votes”). The National Recount Order (05/2020), no matter what it says, being no more than subsidiary legislation has to be read with such modifications, adaptations, qualifications and exceptions (as may be necessary) to bring it into conformity with section 96 of RoPA, and a fortori the Supreme law-the Constitution (article 8).

But contrary to the misplaced hysteria of the opposition, article 177 (2) (b) DOES NOT PROVIDE FOR A DEEMED PRESIDENT. A holistic reading of article 177 (2) (b) makes it clear that what must eventuate, is a president elected by the people. And a President elected in a democratic, sovereign state (articles one and nine from which article 177 (2) (b) takes its flavour, character and constitutional nuances) is, and must be, one elected on the bases of valid votes; and living – present – one-elector; one-vote. The word “deemed”, connotes nothing more, nothing less, than that no further or other evidence in proof of having been so democratically elected, is necessary, because of the evidential conclusivity prescribed by/in article 177 itself of the Chairman of GECOM’s instrument, that the named person was elected president. But, the point cannot be stressed enough, that it is not for the Chairman, it is not for GECOM, to determine by reference to (valid) votes which list has won.
That determination is the clear, unambiguous constitutional responsibility and duty of the CEO. (Questions of the ouster of the Court’s jurisdiction in these election matters except as under article 177 (4) arises in terms of article 177 (6) but that is outside the scope of this letter). En passant, I mention that in view of the CEO’s position, rightly, I argue, of IN DETERMINATION of the results, nice, and novel, and difficult questions of interpretation (article 177 (4) has arisen. Our Constitution makes no express provision as to fresh elections. Does it, by necessary implication? What then are the constitutional options for the CEO in this state of indetermination? Does he in his advice to GECOM, maintain his position of indetermination? Does he proceed to tabulate the results based only on VALID VOTES, (as he has found them) in which event the Chair’s declaration under article 177 (2) (b) would have to be evidentially based on it? (This letter is inappropriate to offer a considered view on a matter of such outstanding and grave constitutional significance and importance).

But I could not end this letter without a quote from a passage in the Kenya election case of Raila Amolo Odinga et al v. Independent Boundaries Commission, Chairperson Independent Electoral and Boundaries Commission et al (2017). In a four-two majority decision, the very learned CJ & P in delivering the majority judgement says at paragraph [378] thus “where do all these inexplicable irregularities that go to the very heart of electoral integrity leave this election. It is true that where the quantitative difference in numbers is negligible, the Court as we were urged, should not disturb an election. But what if the numbers are themselves NOT a product of the expression of the free and sovereign will of the people, but of the many unanswered questions with which we are faced. In such a critical process as the election of the President, isn’t quality just as important as quantity. In the face of all these troubling questions, would this Court, even in the absence of a finding of violations of the Constitution, and the law, have confidence to lend legitimacy to this election. Would an election observer, having given a clean bill of health to this election on the basis of what he or she saw on the voting day, stand by his or her verdict when confronted with these imponderables.” (emphasis supplied).

The law can sometimes be an ass; but it cannot be so asinine as to suppose that the CEO was/is to give the Nelson’s eye to such massive, widespread, impactful irregularities and statutory illegalities and be guided only by numerical numbers of questionable legitimacy. This is much the same as Maraga, CJ&P meant and expressed it much more felicitously in the Kenyan case when making observations about “observers.” I submit that legal principles are not the exclusive province of judges/courts only to apply, and cogitate upon. If the CEO was guided or influenced by the consideration in his report, he cannot be faulted. I end with this: Maraga, CJ&P, of the Supreme Court of Kenya might well, with equal facility of reasoning, have been writing about the Guyana GREs, 2020. The framers of the Constitution would have contemplated no less, and expected no less of the dutiful CEO. He has demonstrated courageous and exemplary loyalty or fidelity to the Constitution of the Cooperative Republic of Guyana. GECOM and its chairperson should do no less.

Regards,
Maxwell. E. Edwards

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