– as Magistrate refers question of ‘constitutional considerations’ to the High Court
– ‘I’m fed up’ witness tells courts due frustration over delays

IN another turn of events, the much-anticipated trial surrounding allegations of electoral fraud faces yet another delay, this time with key issues in the case being referred to the High Court for ‘constitutional’ considerations.

On Wednesday, Attorney-at-law Nigel Hughes, who is one of the lawyers representing the cast of characters involved, regurgitated his previous arguments and told the court again that Section 142 of the Representation of the People’s Act obstructs a fair trial for his clients.

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.
This latest setback unfolded when Hughes argued that crucial documents, namely GECOM’s minute books and decision-making records, cannot be disclosed, citing Section 140 (2) of RoPA.

Special Prosecutor Darshan Ramdhani rebuffed these assertions, maintaining that the Act explicitly prohibits the release of such documents.
Originally scheduled to commence on Monday, the trial hit a snag as Hughes contended again that GECOM’s hands are tied due to the legal constraints imposed by Section 140 (2) of RoPA.

This provision, he argued, directly clashes with Article 144 of the Guyana Constitution, safeguarding the right to a fair trial.
Hughes urged Magistrate Leron Daly to escalate the matter to the High Court for a conclusive ruling.

Underlining the constitutional intricacies at play, Hughes highlighted that his clients like Mingo, Myers, and Lowenfield were acting on directives from GECOM, underscoring the necessity of obtaining records to effectively challenge testimonies.
In a concurrence, Magistrate Daly acknowledged her jurisdictional limitations in handling constitutional matters and referred the case to the High Court for thorough consideration.

As a result, the court will reconvene on April 2, 2024, and await the High Court’s determination on fundamental questions related to fair hearings and access to GECOM’s minutes.
This unexpected turn has injected further complexity into a case that has lingered in the courts for over three years.

The frustration surrounding the prolonged legal proceedings manifested dramatically when Communication Consultant Kit Nascimento, a member of civil society and one of the over 90 witnesses in the case, expressed his exasperation during Wednesday’s hearing.

“I’m 92 years old, and I’m fed up,” Nascimento said in court, reflecting the sentiments of many grappling with the prolonged trial.
This delay also had a ripple effect on other witnesses, including Minister Sonia Parag and other notable figures like Head of the Diaspora Unit Rosalinda Rasul, former Region Four Police Commander Edgar Thomas, and Forensic Investigator Rawle Nedd who turned up on Monday when the trial’s commencement was thwarted by the defence’s legal manoeuvres.

The state has already handed over flash drives containing certified copies of Statements of Poll (SoPs) and Statements of Recount (SoRs), along with video interviews. Several bundles of documents were also submitted.
Hughes had previously argued for the case to be heard in the High Court, given the nature of the proceedings which they claimed might infringe on their client’s rights to a fair trial within a reasonable time.

Nevertheless, the Chief Magistrate ruled that despite the voluminous evidence and the complexity of the case, the court has been proceeding with hearing of the case “expeditiously.”
In August 2021, Mingo, along with Chief Elections Officer Keith Lowenfield, and his deputy, Roxanne Myers, had their employment terminated by GECOM.

Those who rejected the results filed several legal challenges which ended up before the Caribbean Court of Justice (CCJ), Guyana’s highest appeal court.

In April 2023, the Presidential Commission of Inquiry (CoI) into the events of the 2020 General and Regional Elections found that there was collusion and collaboration between senior GECOM officials to divert votes to the APNU +AFC instead of safeguarding and preserving the integrity of the electoral system.

Chairman Stanley John and commissioners — former Chancellor, Carl Singh and Senior Counsel Godfrey Smith made these findings based on evidence from the many witnesses who had testified, along with the reports of the international observers.

“…our inquiry reveals that there were, in fact, shockingly brazen attempts by Chief Election Officer (CEO) Keith Lowenfield, Deputy Chief Election Officer (DCEO) Roxanne Myers and Returning Officer (RO) Clairmont Mingo to derail and corrupt the statutorily prescribed procedure for the counting, ascertaining and tabulation of votes of the March 2nd election, as well as the true declaration of the results of that election, and that they did so – to put it in unvarnished language of the ordinary man – for the purpose of stealing the election,” the commissioners said in their report.

The report found that Lowenfield blatantly made decisions and employed procedures in direct contradiction to the law and the will of the people. The findings revealed too that GECOM staffers ignored specific instructions from the court, used materials that were illegal and or manipulated, and sided with APNU+AFC agents to berate observers whenever objections were raised.

After careful scrutiny, the CoI commissioners concluded that there was a conscious and deliberate – even brazen – effort to violate the provisions of section 84(1) of the Representation of the People Act (RoPA).

In so doing, certain “senior GECOM officials” abandoned all need for neutrality and impartiality, and demonstrated a bias for the APNU+AFC and, in the course of events over those days, showed an “open connection” with that party, and by their efforts sought a desired result for the coalition.

As such, the commissioners said that after consideration and analysis of the evidence, Lowenfield, Mingo and Myers “were principally responsible for clear and deliberate attempts to frustrate, obstruct and subvert the ascertainment of votes in electoral district No. 4.”