…AG says as GECOM chair orders Lowenfield to submit report based certified valid votes from recount
…sees breach of constitution with directive

By Svetlana Marshall

CHAIRMAN of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh, has ordered the Chief Elections Officer (CEO), Keith Lowenfield to prepare and submit a fresh Elections Report in accordance with the Certificates of Recount generated during the 33-day National Recount. But the Attorney General and Minister of Legal Affairs, Basil Williams, is challenging the GECOM Chair’s authority to dictate the compilation of the CEO’s report.

Justice Singh’s instruction came one day after the Caribbean Court of Justice (CCJ) set aside the order of the Court of Appeal and invalidated the Elections Report, which was submitted by Lowenfield on June 23. Approximately 115, 000 votes had been excluded from that report on the basis that they were compromised due to a string of irregularities and cases of voter impersonation. The Court of Appeal had ordered that a President ought to be elected on the basis of “valid votes,” and it was on that basis the Chief Elections Officer compiled and submitted his initial report. But the CCJ ruled that the Court of Appeal’s decision was flawed, and had resulted in the unlawful invalidation of votes by the Chief Elections Officer.

In her letter dated Thursday, July 9, 2020, the Chair of the Elections Commission told Chief Elections Officer that Section 18 of the Election Law (Amendment) Act stipulates that he is subject to the direction and control of the Commission.

“In accordance with this section and pursuant to Article 177 (2) (b) of the Constitution, and Section 96 of the Representation of the People Act Cap 1:03, you are hereby requested to prepare and submit your report on the March 2, 2020 General and Regional Elections by 2pm on 10th July, 2020, using the valid votes counted in the National Recount as per Certificates of Recount generated therefrom,” Justice Singh wrote in her letter to the Chief Elections Officer.
The 10 Certificates of Recount, generated during the National Recount, showed a win for the People’s Progressive Party/Civic (PPP/C) but the accompanying Observation Reports, which were mandated by Order 60 – the legal cover used to facilitate the recount – pointed to massive irregularities and close to 5,000 cases of voter impersonation – dead and migrant voters.

Justice Singh had initially ordered the CEO to prepare an Elections Report, in accordance with the National Recount, on June 16. In arriving at that point, she had explained that while allegations detailed in the Observation Reports are “serious,” the Commission did 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.

According to her, the allegations are matters to be addressed in an Elections Petition in accordance with Article 163 (1) (b) of the Constitution, which confers on the High Court exclusive jurisdiction to determine the validity of an election.

A CONSTITUTIONAL BREACH
But the Attorney General, in a statement on Thursday, said the action of the Chair of GECOM amounts to a constitutional breach, noting that neither the Chair nor the Elections Commission could direct the Chief Elections Officer on what to include in his report under Article 177(2) (b) of the Constitution and Section 96 of the Representation of the People Act (ROPA) Cap 1:03.

“If the Chairman of GECOM advises the CEO as to what to put in his advice to the Commission, it would amount to a breach of the Constitution, since the Chairman of GECOM would be acting on her own advice and not acting only in accordance with the advice of the CEO, after such advice has been tendered to the Commission,” the Attorney General explained.

He reasoned that the framers of the Constitution and legislature envisaged that the CEO would independently prepare his advice under Article 177 (2) (b), and his report under Section 96 (2) of the Representation of the People Act, which has been constitutionalized by Article 162 (1) (b) of the Constitution. Williams said it is for the Chair and the Elections Commission to receive the advice and report of the Chief Elections Officer at a duly constituted meeting, and act on them.
“GECOM cannot rely on Section 18 of the Election Law (Amendment) Act No. 15 of 2000 which provides that the CEO is subject to the direction and control of the Commission, because it would be in conflict with provisions of Article 177 (2) (b) aforesaid and section 96 of ROPA (Representation of the People Act), which has been constitutionalized as aforesaid,” the Attorney General reasoned.

In support of his position, Williams alluded to Article 8 of the Constitution, which states that: “The Constitution is the supreme law of Guyana, and if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.”
Further, the Attorney General pointed to Justice of Appeal Fraser in the case of Collymore v. The Attorney General of Trinidad and Tobago, in which, it was said that “No one not even Parliament can disobey the Constitution with impunity.”

A MEETING OF THE COMMISSION
The Elections Commission, nonetheless, is scheduled to meet today (July 10) to discuss the revised Elections Report, and the ruling of the Caribbean Court of Justice (CCJ) with a view to bringing an end to elongated electoral process.

The seven-member Elections Commission was expected to meet on Thursday (July 9) at 13:30hrs. However, the meeting was postponed to allow the Commissioners to study the written judgement of the Court.

The postponement of Thursday’s meeting did not sit well with some of the key players. The Citizenship Initiative (TCI), one of the nine political parties that contested the General and Regional Elections, in a statement, said it was concerned that the electoral process is being further delayed. The small political party, while pointing to the pronouncements of the CCJ, said it was necessary for the electoral impasse to be brought to a swift end.

“It has been four months since the Elections were held and the country has been without a Parliament for well over a year. No one in Guyana would regard this as a satisfactory state of affairs. We express the fervent hope that there would quickly be a peaceable restoration of normalcy. Now, the Law must run its course,” TCI said while quoting the President of the CCJ, Justice Adrian Saunders.

Guyana, it said, is longing for the results of the Elections, held since March 2, 2020, to be declared – a move that would trigger the formation of a new Government and Parliament.

“Now that the apex court of Guyana has definitively ruled on the way forward, it is quite clear what needs to be done. GECOM, and the people of Guyana, have bent over backward enough. GECOM needs to now act decisively to bring our election process to a swift conclusion,” TCI said.

The party said the time has come for all Guyanese to work together to take the country forward. This can only be achieved, it said, if there is respect for the laws governing the country. “We respectfully request Madame Chair, Justice (ret’d) Claudette Singh, to do everything in her power to bring the election to its swift conclusion. TCI calls on Madam Chair to allow Guyana to breathe,” TCI urged.

It has been more than four months since elections were held in Guyana and no result has been declared.