THE decision of Chief Elections Officer (CEO), Keith Lowenfield to pursue litigation in a bid to prevent People’s Progressive Party/Civic (PPP/C)-nominated Commissioners of the Guyana Elections Commission (GECOM) from participating as adjudicators in the hearing of the motion for his dismissal is “a journey that is absolutely futile”.

This is according to Attorney-General and Minister of Legal Affairs, Anil Nandlall, S.C., who, during his weekly television broadcast, ‘Issues In The News’, reasoned that the remedies provided for by law cannot be applied in the manner and form Lowenfield wishes for them to be.

The GECOM Commissioners, Sase Gunraj and Bibi Shadick had tabled a motion dated June 1, 2021, seeking the “immediate dismissal” of Lowenfield, Deputy Chief Elections Officer, Roxanne Myers, and Returning Officer for Region Four (Demerara-Mahaica), Clairmont Mingo, in which they cited a gamut of reasons pertaining to breach of functions, duties, responsibilities and obligations.

The basis for the motions comes against the backdrop of accusations of electoral fraud, and allegations that they participated in a plot to rig the March 2020 elections in favour of the A Partnership for National Unity + Alliance for Change (APNU+AFC) against them.

In response, Lowenfield has asked the High Court for a declaration that he is entitled to the protection of the rules of natural justice and the right to a fair hearing and determination of the motion. He’s also asked for a declaration that, inter alia, the PPP/C-nominated commissioners cannot properly participate, hear and determine their own complaint against him.

“Mr. Lowenfield is now seeking in the court to block GECOM from dismissing him,” Minister Nandlall said, adding: “There is one area in the law where specific performance is not a remedy; one type of contract where you cannot get specific performance; it is in employment contracts.”

According to the Osborn’s Concise Law Dictionary 12th Edition, “Where the common- law remedy of damages would be inadequate compensation for the breach of an agreement, the contractor may be compelled to perform what he has agreed to do by a decree of specific performance.”

‘Specific performance’ is an equitable remedy, and is awarded at the discretion of the court. Further, where a court has jurisdiction to award specific performance, it may award damages in addition to, or in substitution for, specific performance.

“The principle and rationale being very common-sensical is that you cannot force an employer to employ anyone, and you cannot force an employee to work for an employer that he does not want to work for,” Nandlall said.

“That is what Lowenfield’s lawyers seem not to understand; you cannot compel GECOM to continue to employ you. The law doesn’t work that way; you can’t compel anyone, or you can’t prevent anyone from dismissing you,” he added.

As he went on to explain, while the common law remedy of damages is available in employment litigation pertaining to wrongful dismissal, the power to dismiss is not restrained by the law, and the law will never compel an employer to keep an employee on staff, and vice versa.

Nandlall had previously explained that the argument purported by Lowenfield lacks “logic and commonsense”, as “it inheres in both logic and commonsense that in whom is vested the power to hire, concomitantly enjoys the power to fire.”

The Attorney-General explicitly contended that “no rational mind” can dispute GECOM’s legal power and authority to dismiss any member of the Secretariat staff; he reasoned that “it must be elementary knowledge, even to laymen, that disciplinary control necessarily includes a power of dismissal.”

GECOM had unanimously decided to send the trio on paid leave, effective June 28, so as to give it enough time to conclude the ongoing discussions regarding their dismissal within the shortest possible time.

When the motion was called for debate on July 20, 2021, the three APNU+AFC- nominated commissioners, Vincent Alexander, Charles Corbin, and Desmond Trotman walked out of the meeting.

Noting that he was not at all surprised at the walkout, Nandlall said, “They are going to band together; but my problem is why is the motion not being proceeded with. Once the motion is on the floor, the next decision is to debate it and vote upon it and complete it.”

“These three will never agree; a vote will have to be taken, and the quicker that is done, the better for everyone. So, I don’t understand why the meeting had to be adjourned,” he added.

Lowenfield, Myers, and Mingo, along with Chairperson of the People’s National Congress Reform (PNCR), Volda Lawrence; Opposition activist, Carol Joseph; the CEO’s clerks, Michelle Miller and Denise Bob-Cummings; Elections Officer, Shefern February, and Information Technology Officer, Enrique Livan were all charged and are currently before the courts.

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, 2020 polls, when, in fact, the PPP/C had won by 15,000 more votes.