…Ali, Jagdeo among parties added to case
….small parties’ attorney granted leave to submit CARICOM report as evidence

TODAY, in the Court of Appeal, legal luminaries from Guyana and Trinidad and Tobago will present oral arguments in the case brought against the Guyana Elections Commission (GECOM), challenging its ‘failure’ to determine a final credible count and or the credibility of the results of the General and Regional Elections held last March, as required by Order No. 60 and its addendum.

The constitutional case was brought by Eslyn David – a private citizen – against the Chief Elections Officer (CEO), Keith Lowenfield; the Chairman of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh; GECOM and the Attorney General, Basil Williams over a decision of the Elections Commission to include ‘tainted’ votes in an Elections Report to be submitted by the CEO, upon which the declaration of the results would be made.

SIX PARTIES ADDED
Ahead of today’s hearing, a panel of judges, comprising Justices of Appeal Dawn Gregory and Rishi Persaud and High Court Judge Brassington Reynolds, took the bench on Friday at the Court of Appeal to facilitate case management. It was during that hearing, which in part was done virtually, that a number of parties were added – including representatives of the People’s Progressive Party/Civic (PPP/C), A New and United Guyana (ANUG), The New Movement (TNM), Liberty and Justice Party (LJP), Change Guyana and the Citizenship Initiative (CI).

PPP/C’s Presidential Candidate, Irfaan Ali and its General Secretary, Bharrat Jagdeo, were added as respondents in the case on behalf of their political party. They were represented by Trinidad and Tobago’s Senior Counsel, Douglas Mendes, in association with Attorneys-at-Law Devindra Kissoon, Anil Nandlall and Sanjeev Datadin.

ANUG’s Representative, Dr. Mark France; TNM Executive Member, Dr. Joshua Kanhai, and LJP’s Presidential Candidate, Lenox Shuman were also joined to the case following representation by Senior Counsel, Ralph Ramkarran, who appeared on their behalf, in association with Attorney-at-Law Timothy Jonas. Also added to the case were CI’s Executive, Shazam Ally and Kindi Ali of Change Guyana, both of whom were represented by Attorney-at-Law Kashir Khan.

Importantly, the appellant was represented by a battery of Lawyers led by Trinidad and Tobago’s Senior Counsel John Jeremie. Jeremie appeared in association with Trinidad’s Legal Counsel Keith Scotland, and Guyana’s Senior Counsel Roysdale Forde and Attorney-at-Law Mayo Robertson.

GECOM’s Chair was represented by Attorney-at-Law Kim Kyte-Thomas – a former Solicitor General, while the Attorney General represented himself in association with Attorney-at-Law Maxwell Edwards. Notably, GECOM and the Chief Elections Officer were unrepresented on Friday. While the Judges took the bench in the Court of Appeal, the attorneys in the case, appeared virtually via zoom as a result of COVID-19 Measures instituted to suppress the spread of the deadly disease. Virtually, the Chair of GECOM and the CEO were present along with a number of Election Commissioners.

THE CASE
In the case, which was brought by way of a Notice of Motion, David – a North Sophia resident – is seeking a declaration from the Appellate Court that the Elections Commission failed to determine a final credible count and / or the credibility of the results of the General and Regional Elections held last March, and, as such, would have breached Order No. 60 and its addendum. On the basis that the Order was not complied with, David is also seeking an order restraining the Chief Elections Officer from submitting to the Elections Commission, an Elections Report under Section 96 of the Representation of the People Act, Chapter 1:03 containing votes which are not valid and credible.

“An order restraining the Chief Elections Officer from complying with the direction of the Chairman of the Guyana Elections Commission as set out in a letter dated 16th day of June, 2020, to submit an Elections Report under Section 96 of the Representation of the People Act, without the Guyana Elections Commission determining the final credible count and / or the credibility of the results of the General and Regional Elections held on the 2nd day of March, 2020, as required by the Order No. 60 of 2020 and the amended Order of the 29th day of March, 2020,” another section of the application read.

David also wants an Order that restricts Lowenfield from submitting an Elections Report to the Elections Commission under Article 177 (2) of the Constitution containing votes which are not credible. While the CEO, in his June 13th 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, the Chair of GECOM, on Tuesday (June 16), 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. Only the High Court, she said, could determine the validity of an election under Article 163 (1) (b) of the Constitution. She therefore instructed the CEO to prepare and submit an Elections Report pursuant to Article 177 (2) of the Constitution and Section 96 of the Representation of the People Act.

SUBMISSION OF CARICOM REPORT
During Friday’s hearing, Senior Counsel Ralph Ramkarran sought leave to file an Affidavit in Answer, explaining that the objective is to put before the Court the CARICOM Report. That request was granted by Justice Gregory.

The CARICOM’s Report is in stark contrast to that of the Chief Elections Officer’s Report. While the CEO, in his report, said that the 2020 General and Regional Elections were far from credible, the three-member CARICOM Observation Team concluded that the Elections were “reasonably credible.” “Overall, while we acknowledge that there were some defects in the recount of the March 2, 2020 votes cast for the General and Regional Elections in Guyana, the Team did not witness anything which would render the recount, and by extension, the casting of the ballots on March 2, so grievously deficient procedurally or technically, (despite some irregularities), or sufficiently deficient to have thwarted the will of the people…,” a section of the CARICOM Report read.

The CARICOM delegation, comprised Senior Lecturer in the Department of Government at the University of the West Indies (UWI), Cynthia Barrow-Giles; Commissioner of the Antigua and Barbuda Electoral Commission, John Jarvis, and Deputy Supervisor of Elections of St. Vincent and the Grenadines, Sylvester King. The delegation, before departing Guyana, made a case for the elections results to be declared by the Elections Commission.

CASE MANAGEMENT
Today, the case will commence at the Court of Appeal at 11:00hrs, and the presentations by the legal counsel would be limited to 30 minutes. Submissions by the named respondents were due at 18:00hrs on Friday, while Senior Counsel Mendes had until 22:00hrs the very day to reply to any of the other Respondents. He had anticipated that it was more than likely that the Attorney General’s submission would have differed significantly from his line of argument and as such wanted to respond. Further to that, the battery of lawyers representing David has until 07:00hrs today to file their Submission in Response.