Oral arguments for Friday in latest elections case
Chief Justice (ag), Roxane George-Wiltshire
Chief Justice (ag), Roxane George-Wiltshire

…PPP/C among six respondents added

By Svetlana Marshall
ORAL arguments in the country’s latest elections case will be heard on Friday (July 17), Chief Justice (ag) Roxane George-Wiltshire announced, during a Case Management Conference (CMC) broadcast live on YouTube for the first time in the Court’s history in Guyana.
The arguments in the High Court case – Misenga Jones v The Guyana Elections Commission and others – will be heard virtually from 14:00hrs in light of the Emergency Measures instituted to suppress the spread of the deadly Coronavirus Disease (COVID-19).

Attorney General, Basil Williams

Jones is seeking a total of 27 declarations and orders with the primary aim of compelling the Guyana Elections Commission (GECOM) to declare the results of the General and Regional Elections in accordance with the Declarations made by the 10 Returning Officers in mid-March as advised by the Chief Elections Officer, Keith Lowenfield. Ultimately, Jones, a registered voter from Tucville, Georgetown, wants the Presidential Candidate to be deemed elected, in keeping with those declarations and the advice of the Chief Elections Officer and not on the basis of the data generated during the National Recount.

Justice George-Wiltshire, in presiding over the Case Management Conference on Wednesday, said that, among the primary issues in the case is whether the Recount Order – Order No. 60 – is valid and can be used as the legal basis to declare the results of the General and Regional Elections, based on the National Recount. Importantly as well is the question of whether or not the declarations made by the Returning Officers in the 10 Electoral Districts in accordance with the Representation of the People Act can be set aside. Further, the issues of jurisdiction and the constitutionality of Section 22 of the Elections Law (Amendment) Act are among matters expected to be addressed during the oral arguments.
Jones is represented by a battery of lawyers led by Trinidad and Tobago’s Senior Counsel, John Jeremie and Guyanese Attorney-at-Law, Mayo Robertson.

RESPONDENTS
Aside from the Elections Commission, the other named respondents in the case are the Chairman of the Guyana Elections Commission, Justice (Ret’d) Claudette Singh; the Chief Election Officer, Keith Lowenfield; and the Attorney-General, Basil Williams.

On Wednesday, Legal Counsel Kim Kyte-Thomas appeared on behalf of the Chairman of GECOM, while the Chief Elections Officer was represented by Senior Counsel Neil Boston. The Attorney General appeared in person in association with Attorney-at-Law Maxwell Edwards. The Guyana Elections Commission was unrepresented.
Further, representatives from seven political parties – the People’s Progressive Party/Civic (PPP/C), A New and United Guyana (ANUG), The New Movement (TNM), the Liberty and Justice Party (LJP), Citizenship Initiative, Change Guyana, and the United Republican Party (URP) – were added as respondents in the case.
The PPP/C’s General Secretary Bharrat Jagdeo and Presidential Candidate, Irfaan Ali are being represented by Attorneys-at-Law Anil Nandlall and Davindra Kissoon and Trinidad’s Senior Counsel Douglas Mendes.

Trinidad’s Senior Counsel, John Jeremie

Attorneys-at-Law Kashir Khan and Mohamed Khan appeared on behalf of the Citizenship Initiative and Change Guyana; while Legal Counsel, Kamal Ramkarran, appeared on behalf of Dr. Mark France from A New and United Guyana. Further, Senior Counsel Hari Ramkarran, known as Ralph Ramkarran, is representing the Leader of the Liberty and Justice Party, Lenox Shuman; while Attorney-at-Law Timothy Jonas appeared on behalf of Executive Member of The New Movement, Josh Kanhai. Legal Counsel, Sanjeev Datadin, appeared for the Leader of the United Republican Party, Dr. Vishnu Bandhu.

Though Jeremie did not object to the applications, he expressed concern that the legal proceedings could be drawn out. “I have not seen the applications. I am not sure what they add or what they might add; we seek no relief against any of these persons. This is a dispute in respect of the exercise of certain powers of GECOM, and while I can accept that perhaps one of the others may wish to join, if you have 10 parties seeking to be joined, the proceedings are likely to be drawn out,” he reasoned.
He added: “And your Honour has to balance the interest of an efficient and expeditious use of the court’s time with the interest of 10, 12 persons…being joined.”
In response, Justice George-Wiltshire said it would be difficult to decide who to choose, and as such, “in the interest of justice and fairness,” the representatives of the various political parties were added to the case.

SUBMISSIONS
The applicant – through her attorney – was given until 23:00hrs on Wednesday (July 15, 2020) to make her submissions, while the respondents have until 22:00hrs today (Thursday, July 16) to make their submissions. The applicant, if so desire, has, until 11:00hrs on Friday, July 17 to file a reply. Oral submissions will begin on Friday (July 17) at 14:00hrs.

CRUX OF THE MATTER
Through her application, Jones, among other things, is seeking a declaration that Justice Singh failed to act in accordance with the advice of the Chief Elections Officer as mandated by Article 177 (2) (b) of the Constitution of Guyana, and, in effect, would have failed to declare the Presidential Candidate deemed to be elected as President in accordance with that advice.

Lowenfield’s July 11 Elections Report showed a win for the A Partnership for National Unity + Alliance For Change (APNU+AFC) coalition, which meant that President David Granger is in line to be elected to office for a second term, but that report has not gained the support of the GECOM Chair and the PPP/C-nominated Commissioners.

Senior Counsel, Neil Boston

Jones told the Court that only the Declarations made by the Returning Officers in the 10 Electoral Districts are legal, and as such the High Court should confine the Chief Elections Officer, and by extension the Elections Commission to those declarations as stipulated in Section 96 of the Representation of the People Act.
In defending her Application, Jones, through her lawyer, told the Court that while the first Declaration made by Region Four Returning Officer, Clairmont Mingo, on March 5, 2020 was invalidated by the High Court on March 11, 2020, his second declaration made on March 13, 2020 was never invalidated by the Court.
However, she noted that, on March 17, 2020, the President and the Leader of the Opposition agreed to a National Recount as a result of the intervention of the then Chairman of the Caribbean Community (CARICOM). The Courts later ruled that there could not have been a CARICOM-supervised recount, and in keeping with that April decision, GECOM initiated a National Recount on May 6, 2020, using Order No. 60 as its legal cover.

But approximately one month after that recount process came to an end, the Caribbean Court of Justice (CCJ), in its July 8 judgment in the case Bharrat Jagdeo and Irfaan Ali v Eslyn David and others, stated that Order No. 60 could not create a new election regime.

“The Court further declared that validity means, and could only mean, those votes that ex facie are valid. Determination of such validity is a transparent exercise conducted in the presence of, inter alia, the duly appointed candidates and counting agents of contested parties,” Jones pointed out.

She added: “After votes were duly cast in the General and Regional Elections of 2020, votes were tabulated, and spoiled and rejected ballots were removed in the presence of counting agents and representatives of the political parties by Returning Officers, as required by Section 84 of the Representation of the People Act, and a return in writing was issued by each of the ten (10) Returning Officers, in accordance with Section 89(1)(f) of The Representation of the People Act. Based on returns received from the Returning Officers of the ten (10) Electoral Districts, the Chief Elections Officer calculated the total number of valid votes, and prepared a report as required by Section 96 of the Representation of the People Act.”

The CEO’s Election Report, Jones noted, was submitted to the Chair of GECOM on March 13, 2020, but was placed in abeyance by the Commission amid complaints against Mingo. Jones however reminded that at no time did the Court ever invalidate Mingo’s second declaration, or any of the other nine declarations made by the Returning Officers.

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