– APNU-appointed GECOM Commissioner rails against decision

By Navendra Seoraj

THE Guyana Elections Commission (GECOM), by way of majority, has appointed one of the leading elections lawyers in the Caribbean, Senior Counsel Anthony Astaphan, to represent Chief Elections Officer (CEO) Keith Lowenfield in the elections petition case.

On August 31, the A Partnership for National Unity + Alliance For Change (APNU+AFC) coalition, through its lawyer, Senior Counsel Roysdale Forde, filed the petition on behalf of Claudette Thorne, while on September 17, Attorney-at-Law Mayo Robertson filed documents on behalf of Heston Bostwick, who both want the High Court to determine the legality of the elections, and the results that led to the declaration, and allocation of seats in the National Assembly.

The ‘Coalition’ had named several respondents, among them Lowenfield, Vice-President Bharrat Jagdeo, as well as representatives of several political parties that contested the elections, as it wants the High Court to cancel the polls and order fresh elections within 90 days.

The case comes up again on November 24, 2020 for the preliminary hearing, and ahead of this, the Commission has appointed Astaphan to represent Lowenfield, a decision which did not sit well with APNU- appointed GECOM Commissioners.

Astaphan practises in Dominica, Antigua and Barbuda, and St. Lucia. He was made Senior Counsel by the Eastern Caribbean Supreme Court in 1999, and is the former President of the Bar Association of Dominica.

The decision to appoint him was made during a meeting of the Commission, on October 27, said APNU-appointed Commissioner, Vincent Alexander during a virtual press briefing on Saturday.
Alexander said the commissioners, at a prior meeting, had agreed that the Commission would appoint a battery of lawyers following nominations from the CEO and commissioners representing both political parties. But, in his estimation, this process was not followed.
Alexander is upset at the fact that the People’s Progressive Party/Civic (PPP/C)- appointed commissioners rejected the nomination of Senior Counsel Neil Boston to represent the Commission, as suggested by APNU-appointed Commissioner, Desmond Trotman.

When contacted, PPP/C-appointed Commissioner, Sase Gunraj told the Sunday Chronicle that Boston was rejected because of positions he took in matters before the court, which sought to assail decisions adopted by the Commission during the five-month-long elections impasse.

“I cannot understand; you have a lawyer who advocated against the decisions and the proposals of the Commission, and you want him to represent the Commission,” Gunraj lamented.
Alexander however contended that Lowenfield was not allowed to make a nomination, nor was he allowed to be involved in the consultations.
“It is highly procedurally incorrect for the CEO to be named to represent the Commission, and not to have been involved in the decision; the precedent has been, over the years, that the CEO be the one who engages the attorney,” Alexander reasoned, adding that this and other issues were raised by the APNU-appointed commissioners, but Chairperson of GECOM, Justice (rt’d) Claudette Singh agreed to the appointment of Astaphan.

In response, Gunraj said the CEO is a “Creature of the Commission”, and as such he is subjected to its direction and control.
“As a consequence, he has to obey the dictates of the Commission; if he does not want to do that, he could find his way out,” said the PPP/C-appointed GECOM commissioner.
Gunraj contended that Astaphan’s appointment is conscionable, because the attorney is not connected to Guyana, and is an elections lawyer who has been involved in multiple cases, even at the level of the United Kingdom (UK)’s Privy Council.

The attorney’s qualification is, however, not a matter of concern for the APNU-appointed commissioners, but rather comments he’d made subsequent to Guyana’s March 2, 2020 General and Regional Elections.

Astaphan’s comments were related to a Caribbean Court of Justice (CCJ) ruling, which invalidated the June 22, 2020 ruling of Guyana’s Court of Appeal, along with the June 23 elections report submitted by Lowenfield, who had allegedly invalidated over 115,000 votes to hand victory at the polls to the APNU+AFC coalition, although the certified figures from the national vote recount showed a victory for the PPP/C.

Lowenfield had said that he’d relied on the Court of Appeal’s ruling, which amounted to an interpretation that ‘more votes’ meant ‘more valid votes’.
Astaphan had advised that Lowenfield at that point had no other option but to comply with the ruling of the CCJ. The attorney had also said that Lowenfield’s actions had amounted to an affront to democracy in Guyana, and the Caribbean region by extension.

Although being displeased with the decision to appoint Astaphan, Alexander agreed that the CEO, for all purposes, is represented by the Commission, and is not appearing in his personal capacity during the case. Alexander also relayed that the CEO had agreed to work with the decision of the Commission.

Lowenfield and his Deputy Chief Elections Officer, Roxanne Myers, along with GECOM employees, Michelle Miller; Denise Bob-Cummings; Returning Officer for Region Four, Clairmont Mingo; Shefern February; and Information Technology Officer, Enrique Livan are currently facing several charges relating to electoral fraud and misconduct in public office.
They are all accused of inflating the results of Region Four, Guyana’s largest voting district, to give the APNU+AFC coalition a majority win at the March 2 polls, when in fact it was the PPP/C that had won by 15,000 more votes. The PPP/C emerged victorious in the aftermath of the five-month election impasse.

According to Guyana’s laws, the validity of votes can be challenged only through an election petition, after the overall election result has been declared, and a Government is in place. At this point, an investigation will be done, and the case tried in court, based on the evidence presented.