…says Order 60 contradicts Constitution, ROPA
…GECOM chair demands that he submit elections report no later than 11:00hrs today
IN a twist of events on Friday, the Chief Elections Officer (CEO), Keith Lowenfield, instead of submitting an Elections Report, sought clarity from the Chairman of the Guyana Elections Commission (GECOM), Justice (Ret’d) Claudette Singh, on the basis that the request for the preparation and submission of that report collides with the Constitution of Guyana and the Representation of the People Act.
Justice Singh, on Thursday (July 9), had instructed the Chief Elections Officer to submit the Elections Report in accordance with Article 177 (2) (b) of the Constitution and Section 96 of the Representation of the People Act, Cap 1:03 no later than 14:00hrs on Friday (July, 10). According to the instructions of the GECOM Chair, the report ought to be compiled using the valid votes counted during the 33-day national recount as indicated on the Certificates of Recount.
But Lowenfield said there was need for much clarification, and though he met with the Elections Commission at GECOM’s High and Cowan Streets’ Headquarters, there was no report.
In his letter to Justice Singh, the Chief Elections Officer said having read the judgment of the Caribbean Court of Justice (CCJ), it was imperative for him to have a clear understanding ahead of the preparation and submission of the report, to safeguard against any action deemed to be unilateral.
Pointing to the July 8, 2020 judgment of the CCJ in the case – Irfaan Ali and Bharrat Jagdeo v Eslyn David and others, Lowenfield said that the court endorsed the position that GECOM cannot determine the credibility of the elections, as he pointed to paragraphs 41-45 of the judgment.
“It therefore holds that Order 60 of 2020 cannot be executed in its entirety. As a consequence, a final credible count as conceived by the commission and expressed in the Order cannot be attained,” the Chief Elections Officer wrote.
Further, Lowenfield sought clarity on the request for another Elections Report under Section 96 of the Representation of the People Act.
“Kindly provide guidance on how Section 96 (1) of the ROPA could be properly operationalised,” the Chief Elections Officer asked, while noting that “of particular relevance are two facts: 1) that the election law envisages that “the votes counted, and information furnished” would be provided by statutory officers and 2) the allocation of seats is premised on the statutory report of the Returning Officers.”
On March 14, the Chief Elections Officer had submitted to the GECOM Chair an Elections Report on the basis of declarations made by the Returning Officers in the 10 Electoral Districts, in accordance with the Section 96 of the Representation of the People Act but those declarations and the Elections Report were placed in abeyance to pave way for a national recount, after allegations of electoral fraud had erupted during the tabulation of the Statements of Recount in District Four. The Elections Commission had relied on Article 162 of the Constitution and Section 22 of the Elections Law (Amendment) Act to bring in effect Order No. 60, which triggered the national recount.
The Chief Elections Officer, in his correspondence, said it is important to note that the CCJ, in its decision, said the allocation of seats in the National Assembly and the identification of the successful presidential candidate could only be based on the reports of the Returning Officers.
Paragraph 37 of the judgment reads: “Both the allocation of seats in the National Assembly and the identification of the successful presidential candidate are determined on the sole basis of votes counted and information furnished by Returning Officers under the Representation of the People Act.”
Against this background, the Chief Elections Officer reminded the Chair of the Elections commission that the national recount was not undertaken by Returning Officers.
“The concluding opinion [paragraph 52] of the CCJ’s judgment states that Order 60 is in tension with the Constitution of Guyana and could not create a new election regime,” Lowenfield said while reiterating his need for guidance “on which of the Elections of 2 March 2020 could be lawfully declared.”
Lowenfield also took umbrage at the “missive,” in which, Justice Singh had sent to him dictating how the Elections Report should be compiled. Her actions, he said, are in contrast with the historic practice of submission of the Elections Report.
“The structure of your missive suggests a change in operational procedures and further the two citations appear dissimilar. In this regard, clear guidance is required with respect to whether the report being requested is premised on Section 18 of the Elections Law Act 15 of 2000 or an Article 177 (2) (b) of the Constitution,” he told the GECOM Chair.
The Attorney General and Minister of Legal Affairs, Basil Williams, had said that the instructions of Justice Singh were in breach of the Constitution and the Representation of the People Act on the basis that it is the Chief Elections Officer who must advise the Elections Commission on the results of the elections in the form of an Elections Report.
Nonetheless, while the commission met for hours on Friday, it is unclear whether the clarity Lowenfield sought was provided. He, however, left the meeting ahead of its conclusion after receiving death threats.
However, the Chief Elections Officer was subsequently informed by way of another letter, that the Elections Report must be submitted no later than 11:00hrs today, Saturday, July 11, 2020. In her correspondence to the Chief Elections Officer, Justice Singh said she took note of his concerns but a report was still needed. “In response to your request for guidance on which the results of the March 2, 2020 Elections can be declared, you are accordingly advised that my letter dated July 9, 2020 stands. You are therefore required to submit your report by 11:00hrs on 11th July, 2020,” the GECOM Chair told Lowenfield.
It is expected that once a report is submitted in accordance with the instructions of the GECOM Chair, the Elections Commission will move to declare the results of the March 2 General and Regional Elections, paving the way for the swearing in of the president.
The Chief Elections Officer had submitted a second Elections Report on June 23 based on the ruling of the Court of Appeal but the CCJ, in assuming jurisdiction to hear the case brought by Jagdeo and Ali, set aside the decision of the lower court and invalidated the Elections Report. In that report, approximately 115, 000 votes had been excluded from that report on the basis that they were compromised due to thousands of irregularities and cases of voter impersonation that were unearthed during the national recount.