– as Chief Justice yet to rule on constitutional issues raised by defence

THE constitutional issues raised by lawyers representing those accused of attempting to rig the March 2020 General and Regional Elections in favour of the then-caretaker A Partnership for National Unity+Alliance For Change (APNU+AFC) coalition government are still pending before the High Court.

As a result, the progress of the almost three dozen charges have been halted in the Georgetown Magistrate’s Courts, more than three years after they were initially filed.
The trial, originally set to begin on March 4, has experienced multiple delays since that date.

Magistrate Leron Daly has paused the trial pending a decision from the High Court. Chief Justice (ag) Roxane George, SC, is set to hear the constitutional issue on May 13, 2024. The cases will be brought before Magistrate Daly once more on May 29, 2024, for an update on the proceedings before the Judge.

People’s National Congress/Reform (PNC/R) activist Carol Smith-Joseph; former Health Minister under the 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 Guyana Election Commission (GECOM) employees Sheffern February, Enrique Livan, Denise Babb-Cummings, and Michelle Miller are accused of a number of offences. These include misconduct in public office, uttering forged documents, and plotting to deceive the electors of Guyana by declaring a false account of votes. Among other things, 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 polls, when, in fact, the People’s Progressive Party/Civic (PPP/C) had won by over 15,000 votes. They are out on cash bail pending the determination of their matters.

CONSTITUTIONAL ISSUES
The commencement of the trial was delayed after one of the defence attorneys, Nigel Hughes’ March 4 impromptu request for the GECOM minute books and decision-making documentation. That day, 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 contended that RoPA’s Section 140 (2) is unconstitutional and asked Magistrate Daly to forward this matter to the High Court for a ruling on the constitutionality of that provision.
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 contended 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 will prove this and 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.

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, the release of such information is prohibited by law.
He said that Hughes only submitted a request for the records a week before the trial was set to begin, despite the Chief Magistrate having ordered disclosure in the case more than two years ago. In view 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.
But Magistrate Daly said she was compelled to refer the matter to a judge.

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. 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 dozens of persons along with video interviews.

Several bundles of documents were also disclosed. The over 90 prosecution witnesses include communications consultant, Kit Nascimento; 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.

RECOUNT
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 their trial’s start date, primarily due to requests from the defence.
In April 2023, the presidential Commission of Inquiry (CoI) into the events of the 2020 General and Regional Elections found that there were collusion and collaboration between senior GECOM officials to divert votes to the APNU + AFC.

DELIBERATE ATTEMPT
Vice President Dr Bharrat Jagdeo and Attorney General Anil Nandlall, SC, have expressed frustration over the lengthy delays in these very important matters.
They believe that deliberate attempts are being made to stall the cases.

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

Meanwhile, at one of his recent press conferences, Jagdeo accused the magistracy of frustrating the will of the people and undermining governance by hindering the administration of justice.