APNU+AFC appeals dismissal of second election petition

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APNU/AFC moments after filing their election petition on August 31, 2020. L-R: Roysdale Forde, Khemraj Ramjattan, Joseph Harmon, David Granger

An appeal was lodged on Tuesday at the Guyana Court of Appeal by lawyers for the APNU+AFC challenging Chief Justice Roxane George’s dismissal of the party’s second election petition. Known as petition #88, it was filed by Claudette Thorne and Heston Bostwick.

The petition which was dismissed on April 26, 2021 sought to have the results of the March 2, 2020 General and Regional Elections invalidated on the ground of serious non-compliance with the Constitution of Guyana and electoral laws as it relates to GECOM’s conduct of those elections.

The petitioners had contended that Section 22 of the Elections Law (Amendment) Act and Order #60, also known as the Recount Order, were in violation of the Constitution. However, in dismissing the petition, the Chief Justice held that the petitioners failed to present evidence to support that the conduct of those elections contravened the Constitution and electoral laws.

She held that neither Section 22 of the Recount Order were ultra vires the Constitution. Justice George reasoned that Article 162 of the Constitution fully empowered GECOM to take whatever actions were necessary to conclude the elections, including embarking on a recount of all ballots.

“Given the difficulties, it does appear that it would not have been prudent for GECOM to declare the results in the peculiar circumstances that accompanied the completion of the process of the March 2 Elections. A combination of Article 162 (1) (b) of the Constitution and Section 22 confer the power upon GECOM to issue this order, if GECOM considered it necessary or expedient to ensure impartiality, fairness and compliance… as regards the election process,” she had said.

Erred

But Coalition lawyers in their appeal are contending that “The Learned Judge erred in law when she ruled that Section 22 of the Elections Law (Amendment) Act 2000 and Order #60 made thereunder were not in violation of the Constitution.”

According to the lawyers, by virtue of their application towards the declaration of the results of the March 2, 2020 General and Regional Elections, both Section 22 and Order #60 which flowed directly from Article 162 were in conflict with and or contravened Article 177 of the Constitution.

In court documents seen by this publication, they further contended that Justice George again erred in law when she found that Order #60 was a mechanism to allow for the recount to be conducted by expanding the recount provisions in the Representation of the People Act.”

The petitioners submit that the Chief Justice further erred in law when she failed to find that the mechanisms set out in Order No #60 amounted to a substantial variation from the Representation of the People Act and was consequently could not be said to have “merely modified” the said Act.

Besides that, the lawyers have argued that Justice George also erred in law when she ruled that the petitioners did not produce evidence which claimed that the elections were not lawfully conducted. Like before the High Court, they have gone to the appellate court arguing that there was no need for the production of any evidence except the declarations of the Returning Officers and the recount figures.

The petitioners, among other things, argue that Justice George erred in law when she rejected the evidence before the court which established that there was a difference in the recorded figures for the political parties in the Official Gazette dated August 20, 2020, in which results were declared pursuant to Order #60 from a letter by Chief Elections Officer Keith Lowenfield to GECOM’s Chairperson retired Justice Claudette Singh.

SoPs, SoRs

Moreover, they are contending that the Chief Justice erred in law when she ordered that the Statements of Poll (SoPs) and Statements of Recount (SoRs) generated from the March 2, 2020, General and Regional Elections be held with the Registrar of the Supreme Court for safekeeping.

“The Learned Judge erred in law when she ordered that the Registrar of the Supreme Court is to keep in safe custody the [SoPs and SoRs] until further order of the Court,” they said, adding that she further erred in law when she ordered that the SoPs and SoRs remain in the custody of the Registrar until all appeals have been completed or a court otherwise orders.

Both of APNU+AFC elections petitions have now been dismissed by the Chief Justice. In January, Justice George also dismissed APNU/AFC’s election petition #99 which was filed by Brennan Nurse and Monica Thomas for non-compliance with effecting service on President David Granger.

An appeal has been filed against this ruling. Attorney General Anil Nandlall, SC has filed a motion asking that the appeal be struck out. Therein, Nandlall submitted that there is no statutory or constitutional jurisdiction conferred on the Court of Appeal to hear an election petition dismissed for procedural impropriety or any other reason not stated in Article 163 (1) of the Constitution.

The Court of Appeal will open arguments in the matter on June 14, 2021.