-as defence makes last-minute request for GECOM’s minutes, proof of decisions

By Feona Morrison

THE start of the trial for those accused of electoral fraud has been put off again, despite the prosecution having witnesses in court on Monday who were ready to testify.

This latest development was due to defence attorney Nigel Hughes’s impromptu request for the Guyana Elections Commission’s (GECOM) minute books and decision-making documentation.

People’s National Congress/Reform (PNC/R) activist Carol Smith-Joseph; former Health Minister under the A Partnership for National Unity/Alliance for Change (APNU+AFC) government, Volda Lawrence; former Chief Elections Officer (CEO) Keith Lowenfield; former Deputy CEO Roxanne Myers; former District Four (Demerara-Mahaica) Returning Officer Clairmont Mingo; and GECOM employees Sheffern February, Enrique Livan, Denise Babb-Cummings, and Michelle Miller are accused of a number of offences, including misconduct in public office, uttering forged documents, and plotting to deceive the electors of Guyana by declaring a false account of votes.

It is alleged that the defendants inflated or facilitated the inflation of results for Region Four, the country’s largest voting district, to give the APNU+AFC coalition a majority win at the March 2020 elections, when, in fact, the People’s Progressive Party/Civic (PPP/C) had won by over 15,000 votes.

All the defendants are on cash bail pending the hearing and determination of their matters.

Hughes’ request has caused another delay in the trial, which was scheduled to begin on Monday before Senior Magistrate Leron Daly in the Georgetown Magistrate’s Court.

Hughes submitted that even though these records are essential to support the case of his clients—especially Lowenfield, Myers, and Mingo—GECOM is not allowed to disclose them according to Section 140 (2) of the Representation of the People Act (RoPA). Therein reads: “No evidence of any deliberations of the Elections Commission or communications between members of the Commission regarding its business shall be admissible in court.”

He pointed out that this prohibition goes against Article 144 of the Guyana Constitution, which states that every person is entitled to a fair trial within a reasonable amount of time and to all the resources necessary to question witnesses on their own or with the assistance of a counsel.

He so contended that RoPA’s Section 140 (2) is unconstitutional and asked Magistrate Daly to forward this matter to the Chief Justice for a definitive decision.

His contention is that the trio’s fundamental right to a fair trial is “impaired” by Section 140 (2) of RoPA

The Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void.

Hughes added that Mingo, Myers, and Lowenfield were “directed” to carry out specific decisions made by GECOM, such as “posting of results on spreadsheets.”

He stated that these records are required for cross-examination in the event he or other defence lawyers wish to refute the testimony of the GECOM commissioners and GECOM Chairperson Justice (ret’d) Claudette Singh, who are scheduled to testify on behalf of the prosecution.

SENSITIVE ISSUES

Lead prosecutor King’s Counsel Darshan Ramdhani responded to Hughes by emphasising that there is legislation preventing the disclosure of the documentation and that the prosecution does not have the information Hughes is demanding.

He reasoned that since elections are essential to a democratic society and the topics discussed by GECOM are sensitive, their release is prohibited by law.

He said that Hughes only submitted a request for the records on Wednesday of last week, despite the Chief Magistrate having ordered disclosure in the case more than two years ago.

In light of this, Ramdhani asked the magistrate to reject Hughes’ last-minute request for the documents, characterising it as a frivolous attempt to further delay the start of the trial.

Ramdhani called Hughes’ statement that his clients were directed to use spreadsheets “most startling” because, according to him, the Chief Justice had issued an order banning the use of spreadsheets for election results computation. He pointed out that GECOM had not announced that spreadsheets will be used to tabulate votes.

After then, Magistrate Daly asked for time to consider the submissions. She has promised to return on Wednesday at 10:00 hours with a decision. If she forwards the matter to the High Court, the judge overseeing the case will most likely suspend the magistrate’s court proceedings until the High Court hears and rules on the constitutionality of Section 140 (2) of RoPA.

In addition, Hughes has asked that a Case Management Conference (CMC) be scheduled so that he can address evidence from witness statements that is not admissible.

He promised to provide a detailed statement of the inadmissible evidence by Wednesday.

At court on Monday to give evidence were Minister of Local Government and Regional Development Sonia Parag; Head of the Diaspora Unit Rosalinda Rasul; Forensic Investigator Rawle Nedd and former Region Four Police Commander Edgar Thomas.

The state has already handed over, to the defence, flash drives containing certified copies of Statements of Poll (SoPs) and Statements of Recount (SoRs), witness statements from over 50 persons along with video interviews. Several bundles of documents were also disclosed.

The APNU+AFC Coalition received 171,825 votes, while the PPP/C received 166,343 votes, according to former CEO Lowenfield’s election report.
It was evident from the official findings of the recount process, which was supervised by GECOM and a high-level Caribbean Community (CARICOM) team that the coalition had received 217,920 votes, while the PPP/C had received 233,336 votes, which was enough to win.

In order to help the APNU+AFC caretaker administration stay in power, Mingo allegedly inflated the results in Region Four, the largest voting region in Guyana, as the recount process also revealed.

In August 2021, GECOM made the decision to sack Lowenfield, Myers, and Mingo.

Following the filing of charges against the defendants in late 2020, there have been multiple postponements in the trial’s start date, primarily due to requests from the defence.

Attorney General Anil Nandlall, SC had previously called the delay a “travesty,” pointing out that the charges are still pending and that a whole election cycle will shortly conclude.