By: Lakhram Bhagirat
Chair of the Guyana Elections Commission (GECOM), Retired Justice Claudette Singh, has submitted to the Court that while Article 177 (2) (b) of the Constitution dictates that she should be “acting only in accordance with the advice of the Chief Election Officer” to declare the results of an election, the CEO has to follow the directions of the Commission.
Justice Singh, through her lawyer Kim Kyte-Thomas, submitted that if one is to take Article 177 (2) (b) in part then it would mean that the CEO could submit whichever report he wants and the Commission is bound to accept such.
This, she notes, would be tantamount to elevating the CEO above the Commission, the Constitution and the Laws of Guyana. The GECOM Chair noted that “one man or woman cannot be vested with such absolute unchecked power” and “it is inconceivable that the framers of the Constitution would have so intended.”
Through her submissions, in the case of APNU/AFC supporter Misenga Jones – who is seeking to block the declaration of the elections’ results using the figures from the National Recount – Justice Singh argued that Section 96 (2) of the Representation of the People’s Act (ROPA) stipulates what CEO Keith Lowenfield is mandated to do and as such he cannot escape the intention of Parliament to engage on a “frolic of his own.”
Section 96 (2) of ROPA states: “The Chief Elections Officer shall prepare a report manually and in electronic form in terms of Section 99 for the benefit of the Commission, which shall be the basis for the Commission to declare and publish the elections results under Section 99.”
Attorney Kyte-Thomas argued that it was for this very reason and that the report of the CEO invalidating thousands of votes was deemed null and void by the Caribbean Court of Justice following the appeal of Ali et al v David et al.
Attorney Kyte-Thomas, argued during today’s marathon hearing that, among other things, the High Court does not have the jurisdiction to hear the matter and that it should be dismissed forthwith. She furthered that all of the issues in Jones matter have already been raised and ventilated in previous legal proceedings.
In fact, she pointed to the Ulita Moore case decision months ago, noting that the applicant cannot hide from the conclusions made in the ruling of that matter. Those observations, she noted, were in direct response to decision of the Appeal Court to read Order 60 – under which the national recount was conducted – in a particular way to amend the constitution.
The GECOM Chair’s lawyer further went onto address the issue of validity – pointing out that the entire CCJ decision last week must be read as a whole and that certain parts cannot be cherry-picked to be misconstrued. Attorney Kyte-Thomas referred to the CCJ decision, which is Guyana’s apex court, in which it states that GECOM nor the Court of Appeal can trample on the exclusive jurisdiction of the High Court as the elections court to hear such matters in an elections petition.
“Your Honour it is against this backdrop that it is respectfully submitted that this court has no jurisdiction to entertain this application or alternatively even if the court finds jurisdiction, this matter should be dismissed on the ground that it amounts to an abuse of the courts process since the issues have all been ventilated and determined by courts of competent jurisdiction to so do.
“For the reasons advanced above the Application should be rejected by this Honourable Court and the Commission should be permitted to execute its constitutional role and functions to bring finality to the March 2020 Elections,” Kyte-Thomas said in their written submissions to the Court.
The Misenga Jones application was filed in the High Court on Tuesday by Attorney Mayo Robertson, who had also represented Eslyn David, another coalition supporter who also tried to block the declaration of the elections. That case went all the way to the Caribbean Court of Justice (CCJ) and was eventually thrown out.
Among other things, Jones is now seeking a declaration that the Elections Commission does not have the constitutional authority to direct Chief Elections Officer, Keith Lowenfield.
This is despite the clear provisions of Section 18 of the Election Laws (Amendment) Act No 15 of 2000. Section 18 states that: “the Chief Election Officer and the Commissioner of Registration shall notwithstanding anything in any written law be subject to the direction and control of the Commission.”
The coalition supporter is also seeking a declaration that the GECOM Chair failed to act on the advice of the CEO.