–Mayo Robertson argues in submission

IN defence of his client, Eslyn David, Attorney-at-Law Mayo Robertson told the Appellate Court that Order No. 60, which legally triggered the National Recount under Article 162 of the Constitution, and Section 22 of the Elections Law (Amendment) Act, changed the dynamics of the country’s electoral process, and as such the Guyana Elections Commission (GECOM) ought to determine the final credible count, and or the credibility of the result of the General and Regional Elections, in accordance with the Order.

Just as the Chief Elections Officer (CEO), Keith Lowenfield was preparing to submit his Elections Report in accordance with Section 96 of the Representation of the People Act and Article 177 (2) (b) of the Constitution on Thursday, David challenged GECOM’s decision to compile that report, using votes that are considered not to be credible.

Robertson, in his written submission to the Court of Appeal on Friday, said the Appellate Court, in its deliberation, should consider several issues, including whether the gazetted Order that triggered the National Recount affected or altered the meaning of the phrase, “if more votes are cast” in Article 177 (2) (b) of the Constitution, to the extent that it now means more valid and credible votes cast.

Further, he submitted that the Court should consider “whether the Chief Elections Officer is to advise in respect of the Presidential Candidate who has been named on such a list which has received more votes than any other list”, and “whether the Chief Elections Officer can advise the Elections Commission in respect of the Presidential Candidate, if the Elections Commission abdicates its responsibility to determine the credibility of the General and Regional Elections”.

According to Robertson, the dynamics of the electoral process in Guyana changed when the Elections Commission initiated a National Recount under Order No. 60. Prior to the gazetting of that order, Section 96 of the Representation of the People Act was the basis of the determination of the results of a General and Regional Elections, but the order, he maintained, has altered the electoral process to include consideration of the election’s credibility.

DIFFERENT LEGAL REGIME

“The orders issued by the Elections Commission that ushered the Recount into being established a new and completely different legal regime,” he submitted, while pointing out that GECOM, in instituting the Order, relied heavily on Article 162 of the Constitution, and Section 22 of the Elections Law (Amendment) Act. The Order, Robertson argued, created a new standard for the determination of the Elections held last March.

“It is therefore submitted that though the Order expressly refers to Section 96 of the Representation of People Act, it implicitly had a direct effect on Article 177(2) (b) of the Constitution, as it required the Election of the President to be similarly based on the declaration of the credibility of the Elections.

It is submitted that this conclusion is inescapable, as the Electoral System of Guyana, as set out in Articles 60, 160 and 177 conceives one composite election for members of the National Assembly and the President,” Robertson put to the Appellate Court.
Based on his line of reasoning, the words “if more votes are cast” in Article 177 (2) of the Constitution should now read, “if more valid and credible votes are cast,” taking into account the effect of the Order.

On that basis, Robertson submitted that under Article 177 (2) of the Constitution, the Chief Elections Officer should therefore advise the Chairman of the Elections Commission of the Presidential Candidate whose list secured the highest number of valid votes, in accordance with the Constitutional Structure, and the legal regime established under the Order gazetted by GECOM.

“The advice of the Chief Elections Officer, under Article 177 (2) (b), is in respect of a Candidate whose List has received more valid and credible votes than any other List,” he submitted, while adding that the CEO cannot lawfully advise the Chair of GECOM in respect of a Presidential Candidate, if the Elections Commission relinquishes its responsibility to determine credibility.

Instead of determining the credibility of the elections, Robertson told the Court, the GECOM Chair indicated that she had no legal authority to determine the credibility of the elections, and instead instructed the CEO to submit his Report as required by Section 96 of the Representation of the People Act.

As pointed out by his client in her application, Robertson said the Commission established the criteria or standard for determining the “final credible count”.

In keeping with the established criteria, there was a reconciliation of the ballots issues with the ballots cast — destroyed, spoiled and stamped.

Further to that, the counterfoils or stubs, authenticity of the ballots, the number of voters listed and crossed out as having voted, the number of votes cast without ID cards, the number of proxies issues and utilized, the statistical anomalies and occurrences recorded in the Poll Books, were taking into consideration, and including in Observation Reports generated during the recount process.

SUPPORTING ARGUMENTS
In support of his arguments, he pointed to paragraph 14 of the amended Order which states: “The Commission shall, after deliberating on the Report at Paragraph 12, determine whether it should request the Chief Elections Officer to use the data compiled in accordance with Paragraph 12 as the basis for the submission of a report under Section 96 of the Representation of the People Act Chapter 1:03, provided that the Commission shall, no later than three (3) days after receiving the report make the declaration of the results of the final credible count of the Elections held on the 2 nd day of March, 2020.”

Robertson said it is clear from that amended Order that GECOM arrogated to itself the authority to determine whether the credibility of the Elections, and whether the data could be used to compile a report under Section 96 of the Representation of the People Act for submission to the Commission.

Based on the CEO’s Report on the National Commission, he concluded that credibility of the elections could not be ascertained. “…the summation of anomalies and instances of voter impersonation identified in Districts [1 to 10] clearly does not appear to satisfy the criteria of impartiality, fairness and compliance with provisions of the Constitution and the Representation of the People Act, Chapter 1:03. Consequently, on the basis of the votes counted and the information furnished from the recount, it cannot be ascertained that the results for the Districts [1 to 10] meet the standard of fair and credible Elections,” a section of the CEO’s report reads.

Robertson concluded that GECOM’s failure to rule on the credibility of the Elections amounted to an abdication of a duty and obligation that it had assumed unto itself by Order No. 60 of 2020.