… 23 instances cited where High Court erred in its judgement on the 2020 Elections

By Svetlana Marshall
ONE day after the High Court upheld the national ecount and simultaneously ruled out the possibility of the Guyana Elections Commission (GECOM) relying on the March Declarations to declare the results of the General and Regional Elections, Misenga Jones – a Tucville, Georgetown voter – has moved to the Court of Appeal to challenge the decision.

Through her Attorney, Mayo Robertson, Jones filed a Notice of Appeal on Tuesday (July 21), in which she laid down 23 grounds on which the Chief Justice (ag) Roxane George-Wiltshire erred in her judgment handed down in the High Court on Monday (July 20).

In dismissing the case filed by Jones, the Chief Justice indicated that the majority of the issues highlighted in the application were re judicata, having been addressed by both the Court of Appeal and the Caribbean Court of Justice (CCJ). Further, she ruled that the CCJ, in its July 8 judgement in the case – Irfaan Ali and Bharrat Jagdeo v Eslyn David – endorsed the National Recount. “…as determined by the CCJ, unless overturned by a court in an election petition, the only data that could be used for the declaration of the results of the elections would have to be the recount results or data,” Justice George-Wiltshire said in her virtual judgment.

However, Jones, in her Notice of Appeal, said that the Chief Justice erred in her judgment, and it ought to be set aside or reversed.
In laying down the grounds for the appeal, Robertson, on behalf of his client, told the Appellate Court that the Chief Justice erred in law when she ruled that the issue of the constitutionality of Section 22 of the Elections Laws (Amendment) Act was res judicata.

It was Section 22 of the Elections Laws (Amendment) Act that the Elections Commissioned used together with Article 162 of the Constitution to bring the Recount Order (Order No. 60) into effect. Jones together with the Chief Elections Officer, Keith Lowenfield and the Attorney General, Basil Williams had argued that Section 22 was unconstitutional on the basis that it conferred law-making powers on GECOM – a non-legislative body – in contravention with Article 170 of the Constitution. It was also argued that the Recount Order led to the establishment of a new electoral regime in breach not only of the Constitution but also the Representation of the People Act.
But Justice George-Wiltshire while relying on the decision of the Court of Appeal in the Ulita Moore Case ruled that the legality of Section 22 is a matter to be frontally examined by the court at a full hearing via an elections petition upon the completion of the electoral process. Additionally, she ruled that the matter was res judicata but Robertson told the Appellate Court that the High Court’s decisions were bad in law on the grounds that the Chief Justice misconstrued its judgment in the Ulita Moore v the Guyana Elections Commission case.

Further, Jones wants the Appellate Court to rule that the Chief Justice’s decision that the Chairman of GECOM, Justice (Ret’d) Claudette Singh and or the commission did not act outside of their constitutional and statutory powers was also bad in law. Following the CCJ’s decision in the Ali and Jagdeo Case, the Chairman of GECOM, on July 9, instructed the Chief Elections Officer, to compile an Elections Report in accordance with Section 96 of the Representation of the People Act and Article 177 (2) (b) of the Constitution but with the use of data generated during the national recount. However, the CEO had expressed concerns that the National Recount was not done in full compliance with the Representation of the People Act, which stipulates that the Elections Report must be compiled using information from the Returning Officers. Lowenfield, in reverting to the March Declarations, had relied on paragraph 37 of the written judgment of the CCJ.

That paragraph reads: “The Presidential Candidate on the list for which more votes have been cast than any other list is deemed to be elected as President, and the Chairman of GECOM must so declare. 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 the Returning Officers under the Representation of the People Act.”

Jones together with the CEO and the Attorney General had brought attention to the fact that the Returning Officers had not participated in the May-June National Recount, and as such, they had argued that GECOM ought to declare the results of the elections based on the declarations made by the Returning Officers in the 10 Electoral District in accordance with the Representation of the People Act.

But the Chief Justice said the interpretation of the CCJ’s judgment put forward by Jones, the CEO and the Attorney General was “hopelessly flawed.” “The CCJ judgment lends to the ineluctable conclusion that the recount votes are ex facie valid,” the Chief Justice said but Jones is contending that the decisions of the Chief Justice were flawed.

Jones, in laying down her grounds, argued that the Chair of GECOM acted outside of her constitutional powers, and that the Chief Justice failed to properly construe the terms and provisions of Order No. 60. Such action, Jones told the Appellate Court resulted in a flawed judgment that the validity of the Order was res judicata.
Further, the Tucville voter told the Appellate Court that the High Court failed to consider the “undisputed” affidavit evidence tendered by her and the Chief Elections Officer. Those evidence, she posited, addressed the important question of the Returning Officers’ involvement in the National Recount, and in addition to the changes made by the Elections Commission in determining the validity of votes cast at the Elections. Jones said that the Chief Justice had also disregarded the evidence tendered by People’s Progressive Party Civic (PPP/C) General Secretary, Bharrat Jagdeo.

“The Honourable Chief Justice (ag) erred in law when she failed to consider affidavit evidence of the seventh named Respondent, Bharrat Jagdeo, which would have allowed her to see what the Order for recount had its genesis in an unconstitutional attempt to challenge the lawfulness in the conduct of an election,” Jones said, through her lawyer.

It was also submitted to the Court of Appeal that “the Honourable Chief Justice (ag) erred in law when she failed to determined that the process and or mechanism for determination of a final credible count under Order 60 of 2020 was predicated on and was inconsistent with the constitutional powers of the Guyana Elections Commission and in excess of the provisions of the Representation of the People Act as it required the application of the reconciliation process set out in Order 60 of 2020.”
The Chief Justice, in upholding the National Recount, ruled that the March Declarations made by the Returning Officers are no longer useful but this too was rejected by Jones.

“The Honourable Chief Justice (ag) erred in law when she held that the Declarations of the Returning Officers made pursuant to Section 84 of the Representation of the People Act had been overtaken by events, were no longer useful and could not be resurrected,” Jones, through her lawyer said.

The case brought against the Guyana Elections Commission, the Chairman of GECOM, the Chief Elections Officer, the Attorney General and others will be heard today (July 22) in the Court of Appeal at 15:00hrs. The other respondents in the case are Shazam Ally of The Citizenship Initiative; Abedin Kindy Ali of Change Guyana, Bharrat Jagdeo and Irfaan Ali of the PPP/C, Dr. Mark France from A New and United Guyana, Leader of the Liberty and Justice Party, Lenox Shuman, Daniel Josh Kanhai of The New Movement and Leader of the United Republican Party Vishnu Bandhu.